T 
1901 


*l 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

LAW  LIBRARY 


A  TREATISE 


ON 


THE  LAW  OF  SALE 


OF 


PERSONAL  PROPERTY 


BY 


FLOYD  E.  MECHEM 


Author  of  "Mechem  on  Agency,"  "Mechem  on  Public  Officers,"  "  Mechem1  s  Ele- 
ments of  Partnership;"  Editor  of  Mechem's  Hutchinson  on  Carriers,  etc.; 
Tappan  Professor  of  Law  in  the  University  of  Michigan 


IN  TWO  VOLUMES 


VOLUME  I 


CHICAGO 

CALLAGHAN  AND  COMPANY 
1901 


Copyright,  1901, 

BY 

FLOYD  R.  MECHEM. 


\9o 


STATE  JOURNAL  PEENTINa  COMPANY, 

h  Stkhk.otypers, 

MADISON,   WIS. 


To  J.  C.  M. 

The  long  time  devoted  to  the  preparation  of  this  book,  of  right  belonged 
to  you;  without  your  encouragement  and  aid  I  should  not  have  been  able 
to  complete  it;  and  while  you  have  always  waived  your  right  and  lent  your 
aid  in  the  spirit  of  most  generous  helpfulness,  I  cannot  do  less  than  dedicate 
to  you  the  final  product,  coupled  with  sentiments  which  I  need  not  name, 
but  which  your  own  heart  will  so  readily  divine. 


PREFACE. 


The  present  work  was  projected  in  1887  and  something  was 
then  done  upon  it.  It  was,  however,  temporarily  laid  aside  for 
other  tasks,  until  January,  1S92.  Since  that  time  it  has  been 
constantly  in  hand  and  has  been  prosecuted  as  rapidly  as  health 
and  the  pressure  of  man)'  other  duties  would  permit.  Not- 
withstanding the  utmost  effort,  however,  it  has  been  delayed 
long  beyond  the  time  originally  fixed  for  its  completion. 

As  it  is,  the  book  is  very  far  from  being  what  the  writer 
hoped  to  make  it,  or  what  he  still  believes  he  might  have  made 
it,  had  his  work  been  done  under  more  favorable  conditions. 
To  retain  it  longer,  however,  for  further  elaboration  seems 
neither  practicable  nor  wise. 

The  general  outline  and  arrangement  of  Mr.  Benjamin  have, 
in  the  main,  been  adopted.  This  course  was  decided  upon 
for  two  reasons:  first,  because  Mr.  Benjamin's  classification 
has  always  been  regarded  as  excellent  in  itself;  but  secondly 
and  chiefly,  because  Mr.  Benjamin's  analysis  (which  in  its  turn 
was  largely  that  of  Lord  Blackburn)  has  so  decidedly  controlled 
the  development  of  our  law  in  many  important  particulars, 
that  to  attempt  a  new  classification  or  nomenclature  would  be 
confusing  if  not  presumptuous.  Mr.  Benjamin's  text,  more- 
over, has  been  freely  drawn  upon  for  statements  of  the  Eng- 
lish law. 

No  thought,  however,  of  rivaling  Mr.  Benjamin's  work  has 
been  entertained.  Indeed,  the  writer  is  convinced,  after  con- 
siderable attention  to  the  subject,  that  an  American  book  fol- 
lowing the  method  of  treatment  adopted  by  Mr.  Benjamin  is 
impracticable.  To  show  the  development  of  the  law  by  an 
exhaustive  chronological  statement  of  the  cases  is  possible  in 
England,  and  would  be  possible  in  any  single  State  where 
b 


yi  PREFACE. 

one  court  of  last  resort  would  alone  need  to  be  considered; 
but  to  do  the  same  for  the  whole  United  States,  with  over 
fifty  courts  whose  more  or  less  conflicting  decisions  are  final 
within  their  respective  jurisdictions,  seems  beyond  the  reach 
of  any  reasonable  endeavor. 

Nevertheless  an  attempt  has  been  made  to  base  this  work 
upon  a  careful  study  of  the  principal  American  cases.  To  this 
end,  the  cases  have  been  carefully  digested,  and  abstracts  made 
showing  concisely  the  facts  and  the  rule  of  law  announced. 
Upon  this  foundation,  the  endeavor  has  been  to  make  a  full 
and  clear  statement  of  the  general  principles  which  control 
the  subject,  and  to  give  such  a  range  of  illustration  and  cita- 
tion as  should  show  their  application.  The  abstracts  and  state- 
ments of  cases  have  been  largely  put  in  the  foot-notes  rather 
than  in  the  text,  for  the  purpose  of  keeping  down  the  volume 
of  the  work.  The  result  is  that  the  foot-notes  are  unusually 
heavy,  possibly  unnecessarily  so;  but  if  that  should  be  the  judg- 
ment, the  desire  to  increase  the  practical  usefulness  of  the  book 
must  be  pleaded  in  extenuation. 

No  attempt  has  been  made  to  deal  with  every  case  upon  the 
subject.  Upon  many  points  the  cases  are  now  so  numerous  and 
uniform  that  even  to  cite  them  all  seemed  needless  use  of  space. 
Hundreds  of  cases  have  been  examined  and  rejected  upon  this 
ground.  An  effort  has  been  made,  however,  to  include  all  of 
the  more  recent  and  important  cases  down  to  the  date  of  send- 
ing the  manuscript  to  the  press. 

Parallel  references  to  the  " Reporters,"  to  the  "American 
Decisions,"  "  American  Reports,"  "  American  State  Reports," 
and  to  the  "Lawyers'  Reports  Annotated,"  have  been  made, 
and,  in  many  instances,  to  the  volumes  of  selected  cases  upon 
the  law  of  Sale.  Priority  of  citation  has,  moreover,  been  usually 
given  to  these  cases,  upon  the  theory  that  they  are  likely  to  be 
the  most  important  and  most  generally  accessible.  Illustra- 
tions of  the  most  important  attempts  to  codify  the  law  of  Sale 
are  given  in  the  Appendix. 

When  tin's  task  was  undertaken  the  writer  believed  that 
then-  w;is  a  real  mod  for  an  American  book  upon  the  law  of 


PREFACE.  Vll 

Sale.  In  the  long  time  that  he  has  been  at  work,  various  con- 
tributions to  the  subject  have  been  made  by  others,  so  that  it 
is  possible  that  the  need,  if  it  ever  existed,  has  long  since  been 
supplied.  The  writer,  however,  whether  wisely  or  unwisely, 
has  persisted  in  his  undertaking,  and  if  his  work  shall  prove  to 
have  a  value  in  some  degree  commensurate  with  the  labor 
spent  upon  it,  he  will  be  content. 

Floyd  R.  Mechem. 
University  of  Michigan, 

Ann  Arbor,  May  W,  1901. 


TABLE  OF  CONTEXTS. 


References  are  to  sections. 


VOLUME  I. 


BOOK  I. 

OF  THE  CONTRACT  OF  SALE:  ITS  FORMATION. 


CHAPTER  I. 

DEFINITIONS. 

Sale  defined. 1 

Forms  of  bargaining 2 

Effect  of  intention 3 

Essential  elements 4 

Further  of  the  definition  —  Executory  or  executed  sales "> 

Bargain  and  sale  ...  6 

Absolute  and  conditional  sales 7 

Voluntary  and  forced  sales, 8 

Judicial  sales 9 

Public  and  private  sales 10 

CHAPTER  II. 

TRANSACTIONS  TO  BE  DISTINGUISHED  FROM  SALES. 

Purpose  of  this  chapter 11 

Sale  to  be  distinguished  from  gift 13 

Sale  to  be  distinguished  from  barter  or  exchange 13-15 

Uses  of  this  distinction  —  Pleading  —  Statutes  —  Waiving  tort  — 

Construction  of  authority 16-18 

Sale  to  be  distinguished  from  bailment 19.  "20 

Change  of  form  or  substance  as  the  test  —  Illustrations - 

Further  illustrations 83 

Intention  of  parties  as  the  test 24 


x  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Same  subject  -  Commingling  of  goods  -  Effect  of  custom . .  25,26 

Commingling  with  right  of  sale  or  use  in  bailee 27  30 

Bailment  with  privilege  of  purchase  to  be  distinguished  from  sale. ...  31 

Option  to  buy  and  pay  for  chattel  or  pay  for  its  use 32 

Delivery  of  goods  on  trial  to  be  purchased  if  approved 33 

Sale  with  option  to  return  or  pay 34 

Bailment  or  sale,  how  determined  —  Law  or  fact 35 

Sale  to  be  distinguished  from  mortgage 36 

Sale  to  be  distinguished  from  pledge •  •  37 

Sale,  not  pledge 38 

Pledge,  not  sale ^ 

Parol  evidence  to  show  apparent  sale  to  be  pledge  or  mortgage 40 

Sale  to  be  distinguished  from  mere  agency  to  buy  41,  42 

Sale  to  be  distinguished  from  agency  to  sell  or  "consignment " 43-45 

Principles  of  construction 46 

Illustrations  of  construction 47 

Agency,  not  sale 4y 

Sale,  not  agency 49 

How  question  determined  —  Law  or  fact 50 

Consignment  of  goods  to  pay  debt  or  cover  prior  advances 51 

Sale  to  be  distinguished  from  contract  for  work  and  labor 52 

Sale  to  be  distinguished  from  compromise  respecting  liens. 53 

Furnishing  of  food  by  restaurant  or  innkeeper  as  sale 54 

Supplying  goods  by  several  common  owners  to  one  of  them  —  Social 

clubs  —  Intoxicating  liquors °5 

Transfer  of  title  by  operation  of  law. 56 

CHAPTER  III. 

OF  THE  CAPACITY  OF  PARTIES  -  WHO  MAY  BUY  AND  SELL. 

Purpose  of  this  chapter 57 

I.  Of  Capacity  in  General. 

General  rule  as  to  competency 58 

Presumption  of  competency 59 

Causes  and  classification  of  incompetency 60 

1.  Na  t  u  ra  I  Incompetency. 

"What  here  included 61 

a.  Persons  of  Unsound  Mind. 

Scope  of  present  treatment 62 

[nsane  persona  as  parties  to  contracts  generally 63 

1  degree  of  incapacity  which  avoids  64 

Weakness  of  mind  and  imposition  combined 65 

Mere  inadequacy  of  price 66 


TABLE   OF    CONTENTS.  XI 

References  are  to  sections. 

Partial  insanity  —  Monomania  —  Sane  interval 67 

Presumption  as  to  sane  intervals 68 

Effect  of  judicial  determination  of  insanity 69 

Only  prima  facie  evidence  as  to  period  covered 70 

Petitioner  for  proceeding  not  estopped  by  it 71 

Whether  contracts  of  insane  person  void  or  voidable 72 

Avoiding  contract  —  Executed  and  executory 73 

Protection  of  innocent  party 74,  75 

Insane  person  must  have  received  benefit 76 

Return  of  consideration  necessary 77 

Right  to  recover  from  bona  fide  purchaser 78,  79 

Who  may  disaffirm 80 

Creditor  may  not 81 

Sane  party  may  not 82 

Affirmance  of  contract 83 

Contract  of  insane  person  for  necessaries,  binding 84 

Liability  limited  to  value  received 85 

&.  Incompetency  of  Drunkards. 

Contracts  of  drunken  persons 86 

Voidable,  not  void 87 

Bona  fide  holders 88 

Habitual  drunkards 89 

Partial  intoxication  coupled  with  fraud 90 

Drunkards  under  guardianship 91 

c  Incompetency  of  Spendthrifts. 

Contracts  of  spendthrifts,  etc  92 

2.  Legal  Incompetency. 
In  general 93 

a.  Incapacity  of  Infants. 

In  general 94 

Infant's  contracts  voidable,  not  void 95 

What  meant  by  voidable 96 

Who  may  avoid  97 

When  avoided 98 

When  ratified 99 

How  much  to  be  ratified 100 

Effect  of  ratification 101 

Knowledge  of  non-liability 102 

Consideration  for  ratification 103 

Ratification,  how  effected 104,  105 

Sale  or  exchange  by  infant  voidable . .  106 

When  avoided 107 

How  avoided 108 


Xii  TABLE   OF    CONTENTS. 

References  are  to  sections. 

Return  of  consideration 109 

Bona  fide  purchasers HO 

Chattel  mortgage  voidable HI 

When  avoided H2 

Returning  consideration ....  113 

How  avoided H4 

Purchases  voidable,  if  not  necessaries 115 

When  avoided HO 

How  avoided H™ 

Return  of  consideration 118 

Ineffectual  defenses  —  Recoupment  —  Injury  to  goods 119 

Effect  of  disaffirmance  —  Revests  seller's  title 120 

■ Ratification  of  purchases  121 

Liability  of  infant  for  necessaries 122 

For  what  amount  bound 123, 124 

Interest 125 

Goods  must  have  been  furnished  on  infant's  account 126 

Infant  not  liable  if  already  supplied 127 

■ Seller  supplies  goods  at  his  peril 128 

■ Infant  living  with  parents,  etc.,  presumed  to  be  supplied 129 

What  constitute  necessaries 130 

How  determined  —  Burden  of  proof 131 

Illustrations 132 

b.  Incapacity  of  Married  Women. 

What  here  considered 133 

Common-law  disability 134 

Equitable  doctrines  as  to  separate  estate 135 

Statutes  removing  disability 136 

To  what  extent 137 

What  contracts  she  may  make 138 

Statutory  liability  for  family  necessaries 139 

c  Capacity  of  Corporations. 

In  general 140 

Corporations  as  sellers 141 

Corporations  as  buyers 142 

d.  Capacity  of  Partnerships. 

In  general 143 

Partnerships  as  sellers 144 

Partnerships  as  buyers 145 

II.  Sales  by  Persons  Having  Only  a  Defeasible  Title. 
Such  a  person  in  possession  may  pass  good  title  to  bona  fide  purchaser.   146 

One  holding  subject  to  secret  lien 147 

Fraudulent  vendee 148 


TABLE    OF    CONTENTS.  Xlll 

References  are  to  sections. 

One  who  obtained  goods  by  trick 149 

Fraudulent  grantee  of  debtor 150 

Fraudulent  debtor 151 

Conditional  vendee 152 

Purchaser  for  cash  who  has  not  paid  153 

IIL  Sales  by  Persons  Having  Only  an  Ostensible  Title. 

In  general,  one  cannot  convey  better  title  than  he  has  154, 155 

Possession  alone  insufficient  evidence  of  title 156 

Possession  coupled  with  indicia  of  ownership 157 

What  requisite 158,  159 

Illustrations 160-164 

Limitations 165 

Appearance  of  title  from  possession  of  bill  of  lading  or  warehouse  re- 
ceipt   166 

Ostensible  title  of  vendor  in  possession 167 

Ostensible  title  under  Factors  Acts 168, 169 

Ostensible  title  by  conduct 170 

IV.  Sales  and  Purchases  by  Persons  Acting  for  Others. 

In  general 171 

Nature  of  authority. ...  172 

1.  Authority  to  Sell  Personal  Property. 

How  considered 173 

a.  Authority  to  Sell  Conferred  by  Law. 

Chief  illustrations 174 

b.  Authority  Conferred  by  Act  of  Party. 

Express  authority  to  sell 175 

Implied  authority  to  sell 17(5 

None  implied  from  mere  possession 177 

None  implied  from  mere  relationship  —  Husband  and  wife  —  Parent 

and  child... 178 

None  implied  from  authority  to  do  other  kinds  of  acts 179 

2.  Authority  to  Buy  Personal  Property. 

How  considered 180 

a.  Authority  to  Buy  Conferred  by  Law. 

Chief  instances 181 

Authority  of  wife  to  buy  necessaries  on  husband's  credit 182 

Where  parties  are  living  together 183 

Where  parties  are  living  apart 184 

What  constitute  necessaries 185 

Authority  of  infant  child  to  buy  necessaries  on  parent's  credit 186 


xiv  TABLE   OF    CONTENTS. 

References  are  to  sections. 

b.  Authority  to  Buy  Conferred  by  Act  of  Party. 

Express  authority  to  buy 187 

Implied  authority  to  buy 188 

Not  implied  from  mere  relationship  of  parties 189 

V.  Sales  by  Persons  Acting  in  an  Official  Capacity. 

In  general 190 

Authority  must  be  strictly  construed 191 

Officer  must  keep  within  the  term  and  territory  of  his  office  192 

Officer  cannot  deal  with  himself 193 

Purchasers  at  execution,  tax,  and  similar  sales    194 

Purchases  at  executors',  administrators'  and  guardians'  sales 195 

Trustees'  sales 196 

CHAPTER  IV. 

OF  THE  THING  SOLD  — WHAT  MAY  BE  BOUGHT  AND  SOLD. 

What  may  be  sold 197 

No  present  sale  until  chattel  ascertained 198 

Tiling  sold  must  be  in  existence 199 

Things  potentially  in  existence 200,  201 

Things  not  yet  acquired  by  vendor 202 

Sales  for  future  delivery    203 

CHAPTER  Y. 

OF  THE  PRICE. 

Necessity  of  a  price 204 

Executory  contracts 205 

Executed  contracts 206 

Where  price  not  agreed  upon,  reasonable  value  will  determine 207 

Market  price  —  Market  controlled  by  monopolistic  combination 208 

(  M  her  methods  of  fixing  price 209 

Price  must  be  fixed  with  certainty 210,  211 

Price  to  be  fixed  by  valuers 212,  213 

Payment  of  the  price 214 

CHAPTER  YI. 

OF  THE  CONTRACT  OF  SALE  — IN  GENERAL. 

Purpose  of  this  chapter 215 

Of  the  contract  in  general 216 

L  Of  Mutual  Assf.nt. 

sity  of  mutual  assent 217 

Assent  need  not  be  express 218 


TABLE    OF   CONTENTS.  XV 

References  are  to  sections. 

Assent  must  be  mutual,  unconditional  and  co-existent 219 

Mere  negotiations  not  amounting  to  proposition  and  acceptance  . .  220-223 

Mere  announcements  or  price  lists  not  offers 224,  225 

Offer  must  be  accepted 226 

Offer  must  be  accepted  as  made 227,  228 

Counter-proposition  operates  as  a  rejection 229 

What  constitutes  such  counter-proposition 230,  231 

If  counter-proposition  accepted,  contract  results 232 

Original  proposition  not  open  to  acceptance  after  rejection  by 

counter-proposition 233 

Terms  of  sale  must  be  fully  agreed  upon 234 

Negotiations  in  contemplation  of  more  formal  contract 235-237 

Acceptance  must  be  communicated 238 

Manner  of  accepting 239 

What  constitutes 240 

Acceptance  by  conduct 241-243 

Time  of  acceptance 244,  245 

Question  of  acceptance,  how  determined 246 

Communication  by  mail,  telegraph,  etc 247 

Method  of  acceptance  in  these  cases 248-250 

Time  of  acceptance  in  these  cases 251 

Right  to  withdraw  offer 252 

Voluntary  offer  may  be  withdrawn,  though  time  given  for  its  ac- 
ceptance    253 

Voluntary  offer  may  be  revoked,  though  declared  "irrevocable  ".  254 

Unaccepted  offer  not  such  a  contract  as  excludes  parol  evidence.  255 

Agreement  for  consideration  not  to  withdraw  offer 256 

How  offer  revoked 257 

Mailing  letter,  etc.,  not  enough 258 

Offer  under  seal 259 

Lapse  of  offer  —  Notice 260 

Waiver  of  revocation ...   261 

Withdrawal  of  acceptance 262 

IL  Unilateral  Contracts. 
Unilateral  contracts 263,  264 

III.  Of  the  Effect  of  Mistake  in  Making  the  Contract. 

Mistakes  of  parties  in  making  the  contract 265 

Mistake  as  to  nature  of  transaction  266 

Mistake  as  to  identity  of  party  267-269 

Mistake  regarding  the  thing  sold 270 

Existence  of  thing  sold 271 

Identity  of  thing  sold 272 

Unknown  articles  contained  or  concealed  in  thing  sold 273 


XVI  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Mistake  as  to  quantity 274 

Mistake  as  to  kind,  quality  or  character 275,  276 

Mistake  as  to  location 277 

Mistake  as  to  terms  of  contract  —  Price 278 

Mistake  as  to  possibility  of  performance 279 

CHAPTER  VII. 

OF  THE  CONTRACT  OF  SALE  UNDER  THE  STATUTE  OF  FRAUDS. 

Purpose  of  this  chapter 280 

Sales  prior  to  the  statute 281 

I.  The  Statute. 

The  seventeenth  section  of  the  Statute  of  Frauds 282,  283 

English  Sale  of  Goods  Act 284 

Statutes  in  United  States 285-290 

General  effect  of  the  statutes 291 

IL  What  are  Contracts  for  the  Sale  of  Goods,  Wares  and  Mer- 
chandise. 
Importance  of  this  question 292 

1.  Executory  Contracts. 

Statute  applies  to  executory  contracts 293 

2.  Contracts  of  Sale  or  Manufacture, 

Statute  applies  only  to  contracts  of  sale  and  not  for  manufacture 294 

English  cases  —  Immediate  sale  as  the  test 295-297 

Impossibility  of  present  delivery  as  the  test  —  Goods  not  in  exist- 
ence  •. 298,  299 

Work  on  one's  own  materials  as  the  test 300 

Whether  work  or  materials  is  the  essence  of  the  contract,  as  the 

test 301 

The  present  English  test 302,  303 

American  cases  —  The  rule  in  New  York 304,  305 

The  rule  in  Massachusetts 306,  307 

The  rule  in  Vermont,  Oregon,  Washington  and  Michigan 308-310 

The  rule  in  Maine  and  New  I  tampshire 311-313 

The  rule  in  Wisconsin  and  California 314.315 

The  rule  in  New  Jersey 316 

The  rule  in  New  Mexico 317 

The  rule  in  Colorado 318 

The  rule  in  Minnesota 319 

The  rule  in  Missouri 320 

The  rule  in  Georgia 321,  322 


TABLE    OF   CONTENTS.  XV11 

References  are  to  sections, 

The  rule  in  Maryland 323 

The  rule  in  Iowa 324,  325 

The  true  rule 326 

3.  Auction  Sale. 

Auction  sales  within  the  statute. 327 

Contracts  of  barter  or  exchange  within  the  statute 328 

IIL  What  are  Goods,  Wares  and  Merchandise. 

English  rule  includes  only  corporeal  movable  property 329 

Rule  in  United  States  more  comprehensive 330 

What  included  —  Stocks  —  Notes  —  Inventions 331 

Fixtures 332-335 

Growing  trees 336  -339 

Growing  crops 340-344 

Crops  to  be  raised 345 

Uncut  ice 346 

Minerals 347 

IV.  Of  the  Price  or  Value. 

Operation  of  the  statute 348 

Sale  of  several  articles  aggregating  more  than  the  limit 349,  350 

Sale  of  various  articles  at  auction 351 

How  when  amount  uncertain  at  time  of  sale 352 

V.  Of  Acceptance  and  Receipt. 

What  the  statute  requires 353 

Delivery,  acceptance  and  actual  receipt  required 354 

1.  Of  Delivery  by  the  Seller. 

Necessity  of  delivery 355 

Delivery  alone  not  enough 356 

2.  Of  Acceptance  by  the  Buyer. 

Acceptance  must  be  shown 357 

Must  be  voluntary  and  unconditional 358 

No  acceptance  while  awaiting  test  or  opportunity  for  examination  359 

Acceptance  may  be  implied 360,  361 

When  acceptance  must  occur v 362 

Who  may  accept  —  Agent 363 

Tenant  in  common ....  364 

Carrier 365 

Administrator  366 

That  buyer  ought  to  accept,  not  enough 367 

Whether  acceptance  must  be  final  and  conclusive. 368-370 

Acceptance  of  unfinished  article 371 


XV111  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Burden  of  proof  as  to  acceptance 373 

Question  for  the  jury 373 

Right  of  seller  to  retract  before  acceptance 374 

3.  Of  Receipt  by  the  Buyer. 

Necessity  of  receipt 375 

Nat  are  of  receipt  required 376 

Fact  that  title  would  have  passed,  not  enough 377 

Constructive  delivery  and  receipt 378,  379 

What  sufficient 380,  381 

Mere  words  do  not  constitute  delivery  and  receipt 382,  383 

Delivery  and  receipt  where  goods  still  remain  in  seller's  possession  384,  385 

Goods  remaining  in  seller's  possession  as  seller 386 

Delivery  and  receipt  where  goods  are  in  possession  of  third  person  387,  388 
Delivery  and  receipt  where  goods  are  already  in  possession  of  purchaser  389 

Delivery  where  seller  and  buyer  occupy  same  premises 390 

Receipt  by  common  agent  391,  392 

Carrier  as  agent  to  receive 393 

Acceptance  and  receipt  may  precede  passing  of  title 394 

Receipt  and  acceptance  may  be  complete  though  terms  of  contract  in 

dispute 395 

No  title  passes  until  receipt  and  acceptance 3i»6 

Question  of  receipt  for  the  jury 397 

4.  Part  of  the  Goods  Sold. 

Acceptance  and  receipt  of  part  of  goods  suffices 398 

A  n y  part,  though  small,  enough  399 

But  it  must  actually  be  a  part  of  the  goods  sold  —  Sample  —  Specimen  400 

At  what  time  part  may  be  accepted  and  received  401 

After  part  acceptance,  loss  of  remainder  falls  on  buyer 402 

Acceptance  and  receipt  of  part  must  be  in  pursuance  of  the  contract.  403 

5.  Earnest  or  Part  Payment. 
a.  Of  Earnest. 

Earnest  and  part  payment  synonymous 404 

Thing  in  earnest  must  be  actually  given 405 

Musi  !)<•  a  thing  of  some  value 406 

Deposit  with  third  person  by  way  of  forfeiture  not  enough 407 

Effect  of  earnest  in  passing  the  title 408 

b.  Of  Part  Payment. 

What  the  slat ut.'  requires 409 

The  amount  required 410 

What  may  be  paid 411 

Check lp> 

Buyer's  note 413 


TABLE   OF    CONTENTS.  XIX 

References  are  to  sections. 

Note  of  stranger 414 

Money  already  in  hands  of  seller. 415 

Satisfaction  of  previous  debt 416 

Payment  of  seller's  debt  to  third  person 417 

Mere  tender  of  part  payment  not  enough . .  418 

When  part  payment  to  be  made 419,  420 

Part  payment  to  agent  suffices 421 

6.  The  Note  or  Memorandum. 
What  the  statute  requires. 422 

a.  What  is  a  Note  or  Memorandum. 

Is  distinct  from  the  agreement  itself 423 

At  what  time  to  be  made 424 

Form  of  note  or  memorandum 425 

Several  papers 426,  427 

Letters 428 

Telegrams 429 

Books 430 

Records  of  corporate  meetings 431 

Not  necessary  that  note  be  addressed  to  or  pass  between  the  parties. . .  432 

6.  What  Note  or  Memorandum  is  Sufficient. 

The  requisites  in  general 433 

Parties  must  be  named  or  described 434 

What  description  sufficient 435 

Agent  named  instead  of  principal 436 

Goods  sold  must  be  stated  or  described 437 

Price  must  be  shown 438 

Terms  of  credit  and  mode  of  payment  must  be  stated 439 

Time  and  place  of  delivery  must  be  stated  if  agreed  upon 440 

All  other  material  terms  must  be  included 441 

Consideration  need  not  be  expressed  unless  required  by  statute 442 

Memorandum  must  show  complete  contract 443 

Memorandum  must  import  a  sale 444 

Parol  evidence  not  admissible  to  supply  deficiencies 445 

Parol  evidence  to  contradict  complete  memorandum 446,  447 

But  defendant  may  show  memorandum,  relied  upon  by  plaintiff,  to  be 

incomplete 448 

c  Of  the  Signing  by  the  Parties. 

Whether  both  parties  must  sign 449 

Written  offer  accepted  by  parol 450 

How  to  be  signed 451 


XX  TABLE    OF    CONTENTS. 

References  are  to  sections. 

.  d.  Of  Signing  by  Agent. 

Who  may  be  agent 452 

How  appointed 453 

Several  owners  —  One  as  agent  for  all 454 

How  sign 455-458 

One  person  as  agent  for  both  parties 459 

Evidence  of  authority 460 

Signing  by  auctioneer 461 

Auctioneer  selling  his  own  goods  cannot  sign  for  both 462 

Broker  as  agent  for  both  parties 463-466 

"  Bought  and  sold  notes  "  in  English  practice 467 

English  rules  governing 468 

Bought  and  sold  notes  in  the  United  States 469 

Revocation  of  broker's  authority 470 

Signing  by  one  partner 471 

e.  Of  Alteration  of  the  Memorandum. 

Effect  of  alteration 472 

Memorandum  not  to  be  altered  by  parol 473 

Discharge  or  substitution  of  agreement  may  be  shown 474 


BOOK  II. 

OF  THE  EFFECT  OF  THE   CONTRACT  IN  PASSING 

TITLE. 


CHAPTER  I. 

PURPOSE  OF  BOOK  II. 

Subjects  yet  to  be  considered 475 

Executory  and  executed  contracts 476 

Intention  of  parties  as  the  test 477-479 

Specific  or  unascertained  goods 480 

How  cpaestions  classified 481 

CHAPTER  II. 

OF  THE  UNCONDITIONAL  SALE  OF  SPECIFIC  CHATTELS. 

Purpose  of  this  chapter 482 

Title  passes  at  once  on  unconditional  sale  of  specific  chattel 483,  484 

Title  may  pass  though  goods  not  delivered 485,  486 

Or  though  seller  is  yet  to  make  delivery 487,  488 

■ Or  though  seller  is  to  do  some  other  act  before  delivery 489 


TABLE    OF    CONTENTS.  XXI 

References  are  to  sections. 

Or  though  seller  is  to  do  something  to  the  goods  after  delivery. . .  490 

Or  though  goods  are  in  hands  of  seller's  bailee  or  agent 491 

Or  though  goods  remain  with  seller  as  bailee  for  buyer 493 

Title  may  pass  though  price  not  yet  paid  493-495 

Or  though  something  remains  to  be  done  to  ascertain  the  price  496-498 

The  question  is  one  of  intention *99 

Rules  for  determining  the  intention 500,  501 

Question  of  intention,  by  whom  decided 

CHAPTER   III. 
OF  THE  CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS. 

Purpose  of  this  chapter 5°3 

What  classes  of  cases  to  be  considered 504-506 

L  Where  Goods  are  to  be  Prepared  for  Delivery. 
Where  specific  goods  are  to  be  completed  or  prepared  for  delivery,  no 

title  passes  until  this  is  dune :" 

Unless  a  contrary  intention  appears 509-511 

But  title  will  pass  when  required  act  is  done 512 

Effect  of  part  performance  of  condition 513 

Effect  of  earnest  or  part  payment   514 

IL  Where  Goods  are  to  be  Measured,  Weighed  or  Tested. 
Title  to  goods  not  delivered  presumptively  does  not  pass  if  goods  are 

yet  to  be  weighed,  measured  or  tested  to  ascertain  price 515-517 

Presumption  not  conclusive 518 

Broader  rule  in  some  States 519 

Nor  where  goods  are  vet  to  be  measured,  etc..  with  a  view  to  identifi- 
cation  " 530.521 

Nor  where  goods  are  yet  to  be  measured,  etc..  in  order  to  ascertain  if 

they  comply  with  contract 532,  523 

By  whom  weighing,  etc..  to  be  done 524 

How  where  whole  body  of  goods  is  delivered  to  buyer 525-527 

What  delivery  sufficient 528 

How  when  contemplated  method  fails 529,  530 

Effect  of  part  performance 

Effect  of  earnest  or  part  payment .    532 

m.  Where  Buyer  is  to  do  Something  Other  than  Pay  Price. 

What  here  included 533 

Title  will  not  pass  till  act  performed 534,  535 

Unless  a  contrary  intention  appears 536 

IV.  When  Payment  of  Price  a  Condition  Precedent. 

What  here  included 537 

c 


XK{[  TABLE    OF    CONTENTS. 

References  are  to  sections. 

1.  Payment  of  Price  as  Implied  Condition  Precedent. 
In  general  —  Payment  as  condition  precedent  when  sale  for  cash.  538,  539 

Payment  as  implied  condition  where  sale  expressly  for  cash 540 

Meaning  of  "  cash  sale  " . .  541 

Title  may  pass  though  possession  retained  —  Payment  and  deliv- 

ery  concurrent 

Or  title  may  not  pass  until  payment 543,  544 

Check  or  draft  not  payment 545 

Giving  of  note  or  security  as  condition  precedent . .  546,  547 

Consideration  for  condition 548 

Waiver  of  condition  of  payment  or  security 549 

Delivery  to  carrier  as  waiver 550 

Further  of  waiver 551-553 

Goods  may  be  retaken  if  condition  not  performed 554 

Even  from  bona  fide  purchaser 555 

Clearly  from  attaching  creditors,  etc 556 

Usage  does  not  defeat • 557 

2.  Payment  of  Price  as  Express  Condition  Precedent,  and  herein  of  "  Con- 
ditional Sales"  or  "Instalment  Contracts." 

Formal  contracts  of  so-called  "  conditional  sales  " 558 

Confusion  respecting  name : 559 

What  is  conditional  sale 560 

What  varieties  possible 561,  562 

What  here  meant  by  "  conditional  sale  " 563 

Validity  and  form  of  "  conditional  sale  " 564 

Contract  in  form  absolute  shown  to  be  conditional 565 

Express  promise  to  pay  does  not  render  absolute 566 

Construction  of  such  contracts 567 

Declaration  of  parties  not  conclusive 568 

Instruments  in  form  of  lease  held  conditional  contracts  to  sell  569-571 

Instruments  in  form  of  lease  held  sales  upon  condition  subse- 
quent    572,  573 

Instruments  in  form  of  lease  held  absolute  sales  reserving  lien  or 

chattel  mortgages 574-576 

Instruments  in  form  of  conditional  sale  held  absolute  reserving 

lien  or  mortgages 577-579 

The  rule  in  Pennsylvania 580,581 

Bailment  and  conditional  sale  distinguished .\  582 

Conditional  sale  and  chattel  mortgage  distinguished 583 

The  true  theory ...584 

On  conditional  contracl  to  sell  no  title  passes  until  performance 585 

Not<-  not  payment  ....   586 

Nature  of  interest  acquired  by  vendee 587 


TABLE    OF    CONTENTS.  XX111 

References  are  to  sections. 

Whether  assignable  or  leviable 588 

Entitled  to  legal  protection 589 

Performance  of  condition  inures  to  benefit  of  transferee 590 

Nature  of  interest  retained  by  vendor 591 

Interest  may  be  sold,  seized,  etc 593 

May  assign  interest  with  contract 59^ 

The  right  of  possession 594-596 

Condition  good  against  creditors  of  vendee 597>  598 

Condition  good  against  bona  fide  purchaser 599,  600 

But  not  where  goods  bought  for  resale 601.  603 

•Statutes  requiring  filing  or  recording  of  contract 603,  604 

Default  by  purchaser  —  What  constitutes 60o 

Effect  of  vendee's  default 606-608 

Waiver  of  default  by  seller 609-612 

Remedies  of  seller  upon  default 613,  614 

What  choice  offered 615 

Election  of  remedy "16 

Rescission 617 

Recaption 618 

Personal  action 619 

Does  recovery  of  goods  bar  action  for  price  ? 620-623 

Waiver  by  vendor  of  right  to  retake  property 624 

Vendee  usually  has  no  election 625 

Vendee's  right  to  take  possession  on  default  —  Entry  on  premises  — 

License 626,  627 

Necessity  of  demand  before  recovery 628 

Return  of  payments  if  property  retaken  by  seller 629 

Equities  of  purchaser 630 

How  when  action  against  third  person 631 

Return  of  notes  received    632,  633 

Destruction  of  property  before  payment 634,  635 

Additions  to  or  increase  of  property  before  payment 636 

Additions  to  stock  of  goods  sold 637 

-Changes  in  form  or  nature  of  property 838-641 

Accession  and  confusion  of  goods 642 

Substitution  of  goods 643 

Effect  of  annexing  goods  to  land 644-647 

Conflict  of  laws 648-610 

V.  Contracts  of  Sale  Subject  to  Other  Conditions. 

In  general 651 

1.  Sale  of  Goods  ".to  Arrive." 

Such  contracts  conditioned  on  arrival  of  the  goods 652 

Contracts  limiting  time  of  shipment .' 653 


XX  iv  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Giving  notice  of  name  of  ship 654 

Classification  of  cases 6o5 

2.  Sale  of  Goods  "  to  be  Shipped." 
Such  contracts  conditional 656 

3.  Sale  on  Approval. 

Sale  if  goods  are  approved 657 

Title  and  risk  pending  approval 658 

Within  what  time  option  to  be  exercised 659 

Effect  of  failure  to  return  within  time  fixed 660 

Necessity  for  notice  of  disapproval 661 

How  notice  to  be  given 663 

4.  Sale  if  Goods  Satisfactory  to  Buyer. 

Sale  if  buyer  satisfied 663 

Who  to  be  satisfied 664 

If  buyer  not  satisfied,  no  sale 665 

Reasons  for  his  dissatisfaction 666 

Duty  to  test  goods 667 

Duty  to  act  in  good  faith 668 

Within  what  time  decision  to  be  made 669 

Duty  to  give  notice  or  return 679 

How  buyer's  satisfaction  indicated 671 

5.  Sale  if  Goods  Approved  by  Third  Person. 

No  sale  unless  goods  approved 672 

Third  person  must  act  in  good  faith 673 

6.  Sale  of  Goods  to  be  Appraised. 

Title  does  not  pass  until  appraisal 674 

7.  Sale  or  Return. 

Sale  with  option  to  return  or  pay 675,  676 

Nature  of  title  acquired  by  vendee  —  Risk  of  loss 677 

Option  usually  vendee's  only  —  Security  of  seller 678 

Stipulations  reserving  title 679 

Form  of  option 680 

Within  \\1  mt  time  option  exercised 681 

1  of  not  returning  in  time  prescribed  682 

I  [ow,  when  buyer  puts  it  out  of  his  power  to  return 683 

How,  when  return  becomes  impossible 684 

How  jit  urn  effected 685 

8.  Sale  villi  Option  in  Vendee  to  Retake. 

Title  in  vendee  until  option  exercised 686 

Waiver  of  option 6S7 


TABLE    OF    CONTENTS.  XXV 

References  are  to  sections. 

9.  Sale  unth  Right  in  Vendee  to  Repurchase. 

Title  in  vendee  until  right  exercised 688 

Such  contracts  strictly  construed 689 

Within  what  time  right  exercised 690 

Interests  in  goods  before  repurchase 691 

10.  Sale  to  be  Void  if  Vendor  Pays. 

Such  contracts  valid 692 

11.  Sale  to  be  Void  if  Vendee  Does  Not  Pay. 
Such  contracts  valid 693 

CHAPTER  IV. 

OF    CONTRACTS    RESPECTING    EXISTING    CHATTELS    NOT  YET 

IDENTIFIED. 

Purpose  of  this  chapter 694 

I.  Contracts  for  Sale  of  Portion  of  Ascertained  Mass. 

Before  title  can  pass  the  goods  must  be  ascertained 693 

Method  of  identification  immaterial 696 

Contracts  respecting  part  of  a  mass  of  unequal  constituents 697 

These  cases  form  class  by  themselves 698 

Essential  features  of  cases  of  this  class 699-702 

How  when  whole  mass  delivered  to  vendee 703 

Contracts  respecting  part  of  a  mass  of  like  constituents 704 

Intention  material 70") 

Usage  may  affect 706 

How  question  affected  by  usage 707-709 

How  when  no  usage  governs 710 

Kimberly  v.  Patchin  as  a  type 711,  712 

Cases  holding  separation  necessary 713 

Scudder  v.   Worster  as  a  type 714,  715 

The  weight  of  authority 716,  717 

II.  Contracts  for  Sale  of  Goods  of  Certain  Kind  but  Goods  Not 

Yet  Identified. 

Nature  of  subject 718 

Under  what  circumstances  question  arises 719 

What  to  be  included  here 720 

1.  Of  Appropriation  in  General. 

General  necessity  for  appropriation 721 

What  meant  by  appropriation 722 

Who  interested  in  question 723 

Who  may  make  the  appropriation 724,  725 

What  constitutes  appropriation  in  general 726 

Appropriation  consists  of  acts,  not  mere  intention 727 


X.wi  TABLE    OF    CONTENTS. 

References  are  to  sect  ions. 

Arts  must  be  in  fulfillment  of  contract 728 

I  to  the  a  ppropriation «• 

Buyer's  assent  made  necessary  by  terms  of  contract   7:U> 

Buyer's  assent  required  by  implication  —  Sale  by  sample 781 

How  buyer's  assent  given  when  require.! 739 

3,  Of  Appropriation  when  Setter  is  to  Deliver  Goods. 

How  when  seller  is  to  select  and  deliver  the  goods T33 

3.  Of  Appropriation  where  Buyer  is  to  Come  for  Goods. 
How  when  buyer  is  to  come  and  get  t  ho  goods  734 

Effect  of  putting  goods  into  buyer's  conveyance •  •  •   735 

4.  Of  Appropriation  where  Setter  is  to  Send  Goods  by  Carrier. 

How  when  seller  is  to  send  goods  by  carrier 736-731) 

Intention  governs *0 

• Payment  of  freight  as  evidence 741 

Agreement  that  goods  shall  not  be  paid  for  unless  they  arrive.  .  .  .   740 

Further  of  the  intention 743-745 

-  must  be  sent  in  conformity  with  order 746 

Due  care  must  be  used  in  shipping 747 

Remedy  over  against  carrier  must  be  preserved 74s 

Duty  to  insure 749 

What  constitutes  delivery  to  the  carrier 750 

5.  Of  Appropriation   where  Goods  Consigned  on  Account  of  Previous  Ad- 
van  ees. 
How  when  goods  consigned  on  account  of  previous  advances. 751.  750 

CHAPTEE  Y. 

OF  CONTRACTS  RESPECTING  GOODS  TO  BE  MANUFACTURED  OR 

GROWN. 

Purpose  of  this  chapter 753 

I.  Where  Goods  are  to  be  Manufactured. 
Title  ordinarily  does  not  pass  until  goods  are  completed  and  tendered.  7"4 
Title  does  not  pass  during  progress  of  work 755 

Especially  if  yet  to  be  separated  from  larger  mass 756 

rule  whea  3  to  be  manufactured  and  shipped 757 

Goods  must  correspond  with  order  758 

Title  may  pass  s  such  appears  to  have  been  intention 759 

Even  without  actual  delivery 760 

When  tit                      article  designe  1  for,  but  not  annexed  to.  another.  761 
Articles  to  be  supplied  as  repairs  or  alteration  of  chattel 700 

II.  Whkb             -  vrf.  to  be  Grown. 
Title  passes  when  chattel  grown  and  appropriated 763-70-3 


TABLE    OF    CONTEXTS.  XXV11 

References  are  to  sections. 

CHAPTER  VI. 

OF  THE  RESERVATION  OF  THE  JUS  DB3PONENDL 

Purpose  of  this  chapter 70<;.  707 

Distinctions 

Sending  goods  by  carrier  not  an  appropriation  if  seller  retains  power  of 

disposal 769 

Methods  adopted  770 

Choice  of  methods 771-773 

Bill  of  lading  taken  to  sellers  order 774-778 

Purpose  and  effect  777.  77-1 

Bill  of  lading  to  seller's  order  attached  to  draft  on  buyer 779 

Buyer  obtaining  possession  without  payment 780 

Custom  does  not  affect 781 

Sending  invoice,  etc.,  to  buyer  does  not  affect 782 

The  rules  stated 783-786 

Resume  of  English  cases. 787 

Bill  of  lading  consigning  goods  to  buyer 788,  789 

Transfer  of  bill  of  lading  during  transit 790-792 

How  when  goods  sent  C.  O.  D 793,  794 

How  when  goods  to  be  delivered  F.  O.  B 796-797 


VOLUME  II. 


BOOK  III. 

OF  THE  AVOIDANCE  OF  THE  CONTRACT. 


CHAPTER  I. 

PURPOSE  AND  SCOPE  OF  BOOK  III. 

Nature  of  the  subjects  here  considered 798 

What  subjects  included 799 

How  classified 800 

CHAPTER  II. 

OF  AVOIDANCE  OF  THE  CONTRACT  BY  CONSENT  OF  PARTIES. 

In  general 801,  802 

L  Termination  of  Contract  by  Subsequent  Mutual  Consent. 

Contract  may  be  discharged  by  agreement 803 

Executory  contracts 804 


XXviil  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Executed  contracts 805 

Substitution  of  a  new  contract 806 

Intention  must  be  clear 807 

Introduction  of  new  parties    808 

Formalities  of  rescission  —  Delivery 809 

One  party  alone  cannot  rescind  —  Breach  of  contract  acquiesced  in,  as 

a  rescission 810,  811 

II.  Termination  of  the  Contract  in  Pursuance  of  the  Original 

Agreement. 

Parties  may  stipulate  for  subsequent  termination 812 

Right  may  be  reserved  to  terminate  for  any  cause 813 

Or  may  be  limited  to  particular  cause  or  event 814 

Or  may  be  limited  as  to  time  and  manner 815 

Usually  no  rescission  of  executed  sale  for  mere  breach  of  warranty  — 

Allowed  in  some  States  810-819 

May  be  rescission  for  fraudulent  warranty 820 

Contract  may  provide  for  rescission  for  mere  breach  of  warranty. . . .     821 

Rescission  for  breach  of  warranty  on  sale  of  implements 822 

Form 823 

Conditions 824 

Unless  waived,  conditions  precedent 825 

Rescission  for  non-payment  of  price  820,  827 

CHAPTER  III. 

OF  AVOIDANCE  OF  THE  CONTRACT  FOR   FAILURE  OF  CONSID- 
ERATION. 

Of  the  nature  of  the  objection  in  general 828,  829 

L  As  a  Defense  to  the  Buyer. 

In  what  cases  applicable  as  defense  to  buyer '830 

How  in  case  goods  not  delivered  at  all,  or  in  part  only,  or  were  not 

such  as  buyer  bound  to  accept 831 

How  when  article  received  of  no  value  —  Caveat  emptor 832,  833 

How  on  sale  of  invalid  patent 834 

How  in  sales  of  commercial  instruments 835 

How  on  sale  of  goods  to  which  the  seller  had  no  title 830 

How  in  case  goods  conditionally  sold  are  retaken  by  seller 837 

IL  As  Ground  of  Action  by  the  Buyer. 

Buyer  may  have  action  to  recover  price  paid  without  considera- 
tion      838,  839 

CHAPTER  IV. 

OF  AVOIDANCE  OF  THE  CONTRACT  FOR  MISTAKE. 

Purpose  of  this  chapter 840 

Kinds  of  mistake  involved 841 


TABLE    OF    CONTENTS.  XXIX 

References  are  to  sections. 

Mistake  which  would  prevent  formation  will  justify  avoidance 842 

Mistake  as  to  quality  of  thing  sold 843,  844 

■ 1.  Mistake  of  buyer  as  to  quality,  seller  being  ignorant  of  that 

mistake 845,  846 

2.  Mistake  of  buyer  as  to  quality,  seller  knowing  of  that  mistake    817 

3.  Mistake  of  buyer  as  to  quality  promised,  seller  not  knowing 

of  that  mistake 848 

4.  Mistake    of  one  party  as  to  quality  promised  by  the  other 

known  to  the  latter 849,  850 

Further  as  to  mistake  of  quality  851.  852 

■ Same  rule  in  equity 853 

Effect  of  the  mistake 851 

CHAPTER  Y. 

OF  THE  AVOIDANCE  OF  THE  CONTRACT  FOR  INNOCENT  MISREP- 
RESENTATION. 

What  here  meant  by  misrepresentation 855 

How  misrepresentation  to  be  distinguished  from  fraud 856,  857 

How  representation  to  be  distinguished  from  a  term  of  the  contract  .     858 

Illustrations 859,  860 

Importance  of  distinction 861 

Question  for  the  jury 862 

Effect  of  innocent  misrepresentation 863 

Innocent  misrepresentation  rendered  fraudulent  by  knowingly  retain- 
ing its  fruits 864 

CHAPTER  YI. 

OF  THE  AVOIDANCE  OF  THE  CONTRACT  FOR  FRAUD. 

Purpose  of  this  chapter 865 

L  Of  Fraud  in  General. 

Definition  of  fraud 866 

Must  be  false  representation 867 

Whether  concealment  of  truth  equivalent 868 

Concealment  of  latent  defects 869 

Must  be  present  representation  and  not  mere  promise  as  to  future. . . .  870 

Must  be  representation  as  to  facts  and  not  mere  expression  of  ojjinion  871 

Must  be  representation  of  facts  and  not  of  law 872,  873 

Representation  must  be  material 874 

Representation  must  have  been  made  with  knowledge  of  its  falsity  or 

without  belief  in  its  truth 875 

Derry  v.  Peek 876 


XXX  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Representation  must  have  been  made  to  be  acted  upon  by  injured 

party 877,  878 

Party  complaining  must  have  been  deceived  by  the  representation  879,  880 

Right  to  rely  on  representation 881-883 

Misrepresentation  must  have  caused  proximate  injury 884,  885 

IL  Of  Fraud  upon  the  Seller. 

Forms  of  fraud 886 

Fraudulent  personation 887,  888 

Possession  fraudulently  obtained 889 

Fraudulently  disposing  of  goods  conditionally  delivered 890,  891 

Misrepresentation  by  buyer  as  to  his  solvency  or  ability  to  pay 892,  893 

■ Representations  to  agents  — "  Commercial  agencies  " 894,  895 

How  long  may  be  relied  upon  —  Duty  to  notify  of  change 896 

Statement  made  by  agency  on  its  own  information  —  Material  al- 
terations of  dealer's  statement 897 

Representation  must  have  been  relied  upon 898 

Other  false  representations  inducing  sale 899,  900 

Buying  goods  not  intending  to  pay  for  them 901,  902 

Intention  not  to  pay  coupled  with  insolvency 903 

Cause  for  rescission  distinct  from  false  representations 904 

Intention,  how  determined  905 

Concealment  of  insolvency  or  inability  to  pay  not  enough 906 

Remedies  of  the  seller 907 

Election  of  remedy  —  Reasonable  time 908 

Evidence  of  election 909 

Bringing  action  for  deceit 910 

Election  to  rescind  bars  personal  remedy  911 

Must  rescind  in  toto  —  Rescission  as  to  term  of  credit  only 912 

Rescission  as  to  mode  of  payment  only 913 

Must  restore  consideration 914 

Note  of  vendee  or  a  stranger 915 

Things  of  no  value 916 

When  defendant  not  interested 917 

Restoration  impossible  —  Goods  damaged  or  partly  sold 918 

Restoration  in  actions  of  trover 919 

Restoration  waived 920 

Keeping  tender  of  restoration  open 921 

"Who  may  rescind 922 

Against  what  parties  rescission  had  —  Anyone  not  bona  fide  purchaser 

for  value 923 

Assignees,  mortgagees,  creditors,  etc 924 

Following  proceeds  as  a  trust  fund 925-927 

Necessity  of  demand  before  action 928,  929 


TABLE    OF    CONTENTS.  XXXI 

References  are  to  sections. 
III.  Of  Fraud  upon  the  Buyer. 

Methods  of  defrauding 930 

Misrepresentations  concerning  title 931 

Misrepresentation  concerning  quality 932 

Buying  "  with  all  faults  " 933 

Misrepresentations  must  have  deceived  buyer 934 

Concealment  of  latent  defect 935 

Representations  as  to  value 936 

Market  value 937 

Representation  as  to  quantity 938,  939 

Remedies  of  the  buyer 940 

Must  restore  article 941 

Must  act  promptly 942 

IV.  Of  Fraud  upon  Creditors. 

In  general 943 

The  statutory  provisions    944 

Declaratory  of  common-law  rules 945 

Transactions  voidable,  not  void 946 

Sales  to  defeat  creditors  usually  valid  between  the  parties 947,  948 

Basis  and  extent  of  creditors'  right  to  interfere 949,  950 

What  dispositions  obnoxious  to  the  statutes 951 

Bona  fide  conveyances  for  value  cannot  be  impeached 952 

Fraud  of  seller  alone  not  enough 953 

Inadequacy  of  consideration 954 

Considerations  other  than  pecuniary  955 

Conveyance  subject  to  secret  lien  or  trust 956 

Voluntary  conveyances 957 

Intention  of  parties : 958 

Relations  of  parties 959 

Retention  of  possession  by  seller  as  badge  of  fraud  960 

Regulated  by  statutes  in  some  States 961 

What  delivery  or  change  of  possession  necessary 962 

Immediate 963 

Actual 964 

Continued 965 

Exclusive 966 

Sufficiency  usually  question  for  jury 967 

Doubts  resolved  in  favor  of  creditor  or  purchaser 968 

Who  are  creditors 969 

Nature  of  demand  —  Contract  or  tort  —  In  judgment 970 

Absolute  or  conditional 971 

Existing  or  subsequent  creditors  —  What  conveyances  existing  cred- 
itors may  avoid 972 


XXX11  •  TABLE    OF    CONTENTS. 

Keferenees  are  to  sections. 

What  subsequent  creditors  may  avoid 973 

Where  creditors  of  both  classes . .  974 

Subrogation  of  subsequent  to  rights  of  existing  creditors 975 

Creditors  with  notice 976 

Bona  fide  purchasers  from  fraudulent  grantee 977 

Fraudulent  conveyance  not  good  as  security  for  amount  paid 978 

V.  Of  Fraud  upon  Subsequent  Purchasers. 

In  general 979 

Delivery  as  a  requisite  to  the  transfer  of  the  title 980,  981 

Reasons  for  rale 982 

Retention  of  possession  by  seller  as  a  badge  of  fraud 983 

Conclusiveness  of  presumption  . . ., ...     984 

Statutory  provisions 985 

What  delivery  suffices 986 

Illustrations 987,  988 

Delivery  of  documents 989 

Seller  as  bailee  of  buyer 990,  991 

Who  are  purchasers 992 

CHAPTER  VII. 

OF  AVOIDANCE  OF  THE  CONTRACT  FOR  ILLEGALITY. 

In  general 993 

General  principles  of  law  applicable 994 

Courts  will  not  enforce  illegal  contract 995 

Executory  and  executed 996 

Reasons 997 

1  .a  w  will  not  compel  rescission ■ 998 

Withdrawal  from  incomplete  contract 999 

Rescission  where  parties  not  in  pari  delicto 1000-1002 

Agreements  partly  illegal  —  Divisible  agreements 1003, 1004 

Forms  of  the  law  creating  illegality 1005 

I.  Illegality  at  Common  Law. 

What  the  common  law  prohibits  1006 

Contract  for  sale  of  indecent  or  immoral  tiling  invalid 1007 

Know  ledge  presumed . 1008 

<  '.int racl  of  sale  for  immoral  <>r  illegal  purpose 1009 

Seller  innocent 1010 

Seller  cognizant  or  participating 1011-1014 

Malum  prohibitum  or  malum  in  se 1015, 1016 

ee  of  participation  required    1017-1019 

Sales  in  furtheram I  *  icial  vices 1020-1022 

Sales  in  furtherance  of  gambling 1023 


TABLE    OF   CONTENTS.  XXX111 

References  are  to  sections. 

Sales  in  aid  of  the  public  enemy 1U^>  1,'~" 

Sales  in  violation  of  liquor  laws 10~° 

Conflict  of  laws 10f  "1029) 

Sales  promotive  of  wagering  speculation 1030-1032 

Legitimate  speculation 1033-1035 

Form  of  contract  immaterial.    10*6 

Mere  agreement  to  repurchase  unobjectionable 1037 

Or  that  vendee  has  option  as  to  quantity 10<*8 

Effect  upon  rights  of  brokers  and  other  agents 1039 

Sales  in  furtherance  of  unlawful  combinations 104° 

Sales  designed  to  impose  upon  the  public °fl 

Sales  of  public  office 

r      7     .  1043 

Lex  loci 

II.  Invalidity  by  Statute. 

What  enactments  render  sale  void J044,  1045 

Further  of  construction 10?6'  JJJ  ^ 

Repeal  of  statute ■  •  •  • 

Illustrations  of  effect imfl 

Sunday  sales  —  Statutes  forbidding •  ■  •  ■  ™5 

_,,.-.  10j3-10o6 

Their  effect 

Ratification  of  Sunday  sales * 

Consideration  required 

Conflict  of  laws 


BOOK  IV. 

OF  THE  PERFORMANCE  OF  THE  CONTRACT. 


CHAPTER  I. 

OF  PERFORMANCE  IN  GENERAL. 

1060 

In  general... '       * 

I.  When  Performance  is  Due. 

•      !  ...  1061 

How  this  question  determined 

When  contract  silent,  circumstances  must  determine 1W£  low 

Distinguishing  between  condition  precedent  and  mere  agreement  1064,  lOto 

By  whom  determined 1067,  1063 

Rules  for  determining 

II.  What  Will  Excuse  Performance. 

1069 

In  general 


XXXI V  TABLE    OF    CONTENTS. 

References  are  to  sections. 

1.  Waiver  of  Performance. 

Party  entitled  may  waive  performance 1070 

Elements  of  a  waiver 1071 

Mere  silence  not  a  waiver 10  <  - 

Mere  leniency  no  waiver  1073 

Friendly  attempts  at  adjustment  no  waiver 1074 

Acceptance  of  part  performance  as  waiver  . 1075, 1076 

Statement  of  some  objections  as  a  waiver  of  others  1077 

Voluntary  and  unconditional  acceptance  of  deficient  performance  a 

waiver 1078,1079 

Where  performance  due  is  in  instalments 1080 

2.  That  the  Other  Party  is  in  Default. 

Default  of  one  party  as  excuse  for  non-performance  by  the  other 1081 

Buyers  failing  to  come  or  send  for  the  goods  1082 

Part  performance  only  of  entire  contract 1083 

Contemporaneous  acts  —  Default  in  payment 1084-1086 

3.  Renunciation  of  Contract 
Renunciation  of  contract  by  one  party  will  excuse  performance  by  the 

other 1°87 

Rights  of  one  party  when  the  other  renounces 1088, 1089 

Retraction  of  renunciation 1090 

Stopping  performance  of  executory  contract 1091, 1092 

4.  That  the  Buyer  has  Become  Insolvent. 

When  buyer  on  credit  becomes  insolvent,  seller  may  decline  to  per- 
form  1093-1095 

5.  That  the  Other  Party  is  Unable  to  Perform. 
Buyer  may  repudiate  where  seller  unable  to  convey  title 1096 

6.  That  the  Other  Party  has  Disabled  Himself  to  Perform. 
Effect  of  disabling  one's  self  to  perform 1097 

7.  Impossibility  of  Performance. 

In  general 1098 

Legal  impossibility  excuses 1099 

Physical  impossibility  excuses 1100-1102 

Mere  inability  of  party  does  not  excuse 1103, 1104 

Unexpected  expense  does  not  excuse 1105 

8.  Prevention  of  Performance. 

Prevention  by  one  party  equivalent  to  performance  by  the  other 1106 

■ After  part  performance 1107 


TABLE   OF   CONTENTS.  XXXV 

References  are  to  sections. 
IIL  What  Constitutes  Performance. 
In  general 

1.  Performance  by  the  Seller. 

Of  performance  by  the  seller  in  general ll09 

2.  Performance  by  the  Buyer. 

Of  performance  by  the  buyer  in  general 1110 

CHxVPTER  II. 

OF  THE  TRANSFER  OF  THE  TITLE  BY  THE  SELLER. 

Necessity  of  the  transfer 

"What  constitutes  the  transfer 1113 

Evidence  of  the  transfer  —  Bill  of  sale 1113>  1114 

Duty  of  the  seller 1115 

CHAPTER  III. 

OF  THE  DELIVERY  OF  THE  GOODS. 

Of  the  seller's  duty  to  deliver  possession 1116 

What  is  here  meant  by  delivery 1117 

1.  The  Obligation  to  Deliver. 

11 1ft 
The  obligation  to  deliver 

Delivery  usually  to  be  concurrent  with  payment 11 19-1121 

Conditions  precedent  to  delivery— Notice  of  readiness  to  deliver  or  re- 

.  a  1122,  1123 

ceive ' 

2.  The  Place  of  Delivery. 

When  no  place  specified,  delivery  to  be  where  goods  were  at  time  of 

sale ~ 

Where  time  is  fixed  but  not  the  place H-"0 

Where  the  place  is  fixed  but  not  the  time •  1126 

Where  place  at  option  of  one  party 1127 

Agreement  as  to  place  must  be  complied  with 1128 

3.  The  Time  of  Delivery. 

Time  of  delivery  wheu  no  time  agreed  upon  —  Reasonable  time 1129 

When  notice  is  required 1130 

Agreement  to  deliver  during  indefinite  period 1131 

Reasonable  time,  how  determined 1132, 1133 

Delivery  where  time  is  agreed  upon  —  Construction  of  terms 1134 

Month  — Day 1135 

Computation  of  time 1136 

1 1  '-!7 

Hour  of  day lld' 

Time  of  the  essence  of  contract 1138 


XXXVI  TABLE   OF   CONTENTS. 

References  are  to  sections. 

Performance  at  time  a  condition  precedent 1139 

Delivery  by  instalments  —  Breach  of  one  of  successive  performances.  1140 

The  English  rule •  1141-1143 

The  rule  in  the  United  States 1144 

Norrington  v.  Wright  —  Default  in  delivery 1145 

Pope  v.  Porter  —  Default  in  delivery 1146 

McGrath  v.  Gegner  —  Default  in  payment 1147 

Weight  of  authority 1148-1150 

Alterations  by  consent  in  time  or  place  of  delivery 1151,  1152 

Resume  of  cases 1153 

4  The  Thing  to  be  Delivered. 

Article  delivered  must  be  the  article  agreed  upon 1154-1156 

Amount  delivered  must  be  the  amount  agreed  upon 1157 

Tender  of  too  much  —  Rejection  —  Selection 1158 

Excess  not  charged  for 1159 

Waiver  of  discrepancy 1160 

Tender  of  too  little  —  Rejection  —  Acquiescence    1161 

Retention  of  part  delivered  —  Implied  promise  to  pay  therefor  . .  1162 

Severable  contract  —  Recovery  for  part  performance 1163, 1164 

Severable  contract  —  Failure  as  to  part 1165 

Quantity  indefinite  — "More  or  less"  — "About"  : 1166-1169 

Quantity  indefinite  —  Option  as  to  quantity  —  Election 1170, 1171 

5.  To  Whom  Delivery  is  to  be  Made. 
Must  be  to  buyer  or  some  one  who  represents  him  for  that  purpose. . .   1172 

Delivery  to  agent  sufficient 1173 

Delivery  to  one  of  joint  purchasers  sufficient 1 174 

Delivery  to  carrier,  when  sufficient 1175 

How  question  arises  1176 

How  question  determined 1177 

Is  matter  of  agreement  —  Construction  of  agreement 1178-1180 

Undertaking  of  seller  to  "  send,"  "  ship  "  or  "  forward  "  goods,  how  sat- 
isfied   1181 

Selection  of  carrier 1182 

Delivery  to  the  carrier  must  be  made  with  due  care 1183 

Undertaking  of  seller  to  deliver  the  goods,  how  satisfied 1184 

6.   What  Constitutes  Delivery. 

In  general 1185 

Delivery  complete  when  goods  properly  placed  at  buyer's  disposal. . .  1186 

What  acts  necessary  in  ordinary  cases 1187,  1188 

Seller  in  readiness  though  buyer  in  default 1189 

Marking  and  setting  aside 1190 

Where  goods  are  on  seller's  land  —  License 1191 

Where  goods  in  custody  of  a  third  person 1192 


TABLE   OF    CONTENTS.  XXXV11 

References  are  to  sections. 

Where  goods  in  possession  of  bailee  —  Attornment  1193 

Delivery  by  transfer  of  bill  of  lading  or  warehouse  receipt 1194 

Delivery  to  carriers 1195 

Delivery  by  carriers • •  •  1196 

Delivery  where  goods  are  bulky  or  not  capable  of  manual  deliv- 
ery—Symbolical delivery I197 

Delivery  where  goods  are  retained  by  seller  or  bailee  of  buyer. .  1198 

Delivery  of  growing  crops H" 

Delivery  of  articles  situate  on  land  sold 1200 

Delivery  of  goods  on  vessel  at  sea 1201 

Delivery  where  goods  already  in  possession  of  buyer 1202 

CHAPTEK  IV. 

OF  PERFORMANCE  OF  CONDITIONS  BY  THE  SELLER. 

In  general **"" 

Performance  by  seller  of  express  conditions 1204 

Performance  by  seller  of  implied  conditions,  often  called  implied  war- 


ranties 


1205 


Stipulations  in  executory  contracts  as  conditions 1206-1208 

Identity  cf  kind  a  condition  precedent 1209 

Correspondence  to  description  a  condition  precedent 1210 

Opportunity  for  inspection 1211 

Conformity  to  sample  a  condition  precedent 1212 

Merchantability  a  condition  precedent  1213 

Fitness  for  intended  use  a  condition  precedent 1214 

Time,  place  and  quantity  as  conditions  precedent  — Time  1215 

Quantity 1216 

Place 1217 

Difference  in  legal  effect  between  condition  and  warranty 1218 

Condition  precedent  becoming  warranty  after  acceptance 1219,  1220 

CHAPTER  V. 

OF  WARRANTY  BY  THE  SELLER. 

Purpose  of  the  chapter 1221 

L  Of  Warranty  in  General. 

Warranty  defined 1222 

Is  a  collateral  agreement 1223 

Warranty  to  be  distinguished  from  representation 1224 

Illustration  of  distinction 1225 

What  necessary  to  make  representation  a  warranty 1220 

Further  illustration 1227 

Not  to  be  confused  with  time  of  warranting 1228 

d 


XXXV111  TABLE    OF    CONTENTS. 

References  are  to  sections. 

How  determined 1229 

How  affected  by  usage 1230 

Warranty  to  be  distinguished  from  condition 1231 

Warranty  absolute  or  conditional 1232 

Classification  of  warranties 1233 

II.  Express  Warranties. 

Express  warranty  defined 1234 

What  constitutes  a  warranty — Any  direct  and  positive  affirmation  1233, 1236 

Intention  to  warrant 1237 

How  determined 1238 

Motive  —  Good  faith  no  defense 1239 

Reference  to  other  warranties  or  to  printed  statements  —  Warranty 

by  conduct 1 240 

Mere  expression  of  judgment  or  opinion  not  a  warranty 1241 

What  questions  presented 1242 

Test  for  determining 1243 

Court  or  jury 1244 

Mere  commendation  or  "seller's  praise"  not  a  warranty. . . .  1245, 1246 

Consideration  for  the  warranty  —  Time  of  making  it 1247-1249 

Construction  of  warranties  in  genei'al 1250 

Intent  governs % 1251 

How  words  understood 1252 

Oral  and  written  warranties 1253 

Completed  writing  excludes  oral  warranty 1254 

Otherwise  of  incomplete  writing 1255 

How  determined 1256 

Impeaching  writing  for  fraud 1257 

Written  contract  does  not  exclude  implied  warranties 1258 

Express  warranty  as  excluding  implied  warranty 1259 

When  relating  to  different  subject. 1260.  1201 

Express  warranty  as  excluding  usage 1262-1264 

Time,  duration  and  place  of  warranty 1265 

Warranty  as  to  future  event 1266 

Warranty  against  future  acts  of  government. 1267 

Representations  concerning  soundness  in  animals 1268 

Words  used 1269 

What  constitutes  unsoundness 1270 

Disease  need  not  be  permanent  or  incurable 1271 

Warranty  against  known  defects  —  Usually  none 1272 

But  may  be  given 1273 

How  determined 1 274 

Express  warranty  after  inspection 1275 

Limitations  upon  warrant}' 1276 

To  the  extent  of  seller's  knowledge 1277 


TABLE    OF    CONTEXTS.  XXXIX 

References  are  to  sections. 

Warranties  by  agents 1278, 1279 

Agent's  implied  authority  to  warrant  title 1280 

Agent's  implied  authority  to  warrant  quality 1281-1283 

Custom  —  Judicial  notice 1284 

Customary  warranties  on  sales  of  machinery 1285, 1286 

Sale  by  sample 1287 

Authority  limited  to  a  particular  warranty 1288 

Limitations  upon  power  to  warrant  —  Unusual  warranties 1289-1292 

Authority  exhausted,  when 1293 

Authority  to  warrant  soundness  of  horses 1294 

III.  Implied  Warranties. 

Implied  warranty  defined 1295 

Implied  warranty  when  express  warranty  exists 1296 

Time  and  place  of  implied  warranty ...  1297 

Deterioration  during  shipment ...  1298 

Implied  warranties  classified 1299 

1.  Implied  Warranty  of  Title. 

Under  what  circumstances  a  warranty  arises  in  general 1300 

The  English  rule 1301 

The  rule  in  the  United  States 1302 

To  what  classes  of  goods  the  rule  applies 1303 

Warranty  of  title  protects  against  incumbrances 1304 

Subsequently  acquired  title  inures  to  benefit  of  buyer 1305 

Warranty  implied  on  exchange  of  property 1306 

No  implied  warranty  of  title  in  official  sales,  etc 1307 

None  where  seller  is  known  to  be  mere  agent 1308 

None  where  circumstances  negative  the  presumption 1309 

2.  Implied  Warranties  of  Quality. 
In  general 1310 

a.  Caveat  Emptor. 
No  warranty  implied  on  sale  of  ascertained  chattel  open  to  inspection  1311 

Mere  inconvenience  of  examination  does  not  affect  rule 1312 

No  implied  warranty  of  quality  as  to  obvious  defects 1313 

No  implied  warranty  in  such  cases  even  though  seller  knew  that 

chattel  was  bought  for  specific  purpose 1314,  1315 

Or  that  the  defect  be  latent 1316 

Unless  the  seller  of  goods  with  latent  defects  be  the  manufact- 
urer or  grower  1317, 1318 

No  warranty  of  soundness  from  payment  of  sound  price 1319 

b.  Of  Conformity  to  Sample. 
On  sale  by  sample,  warranty  implied  that  bulk  is  equal  to  sample  in 
quality 1320 


Xl  TABLE   OF    CONTENTS. 

References  are  to  sections. 

What  constitutes  a  sale  by  sample 1321 

Effect  of  inspection 1322-1324 

How  question  determined 1325 

Effect  of  usage 1326 

Parol  evidence 1327 

Extent  of  warranty 1328-1230 

Co-existence  of  other  warranties  1331 

c.  Genuineness. 
Implied  warranty  of  genuineness  on  sale  of  bonds,  notes,  etc 1332 

d.  Conformity  to  Description. 

Sale  by  description  —  The  English  rule 1333 

Sale  by  description  in  the  United  States  imports  warranty  of  identity 

of  kind 1334, 1335 

Description  incorporating  quality 1336 

Limits  of  rule 1337 

•  How  determined 1338 

Description  coupled  with  other  tests  or  limitations. 1339 

e.  Merchantability. 

Warranty  of  merchantability  arises  on  executory  sale  of  merchan- 
dise    1340 

What  satisfies 1341 

How  when  there  is  express  warranty  of  quality 1342 

/.  Fitness  for  Intended  Usa 

Implied  warranty  of  fitness  where  goods  for  particular  use 1343,  1344 

To  what  sellers  the  rule  applies 1345 

Extent  of  the  warranty  —  Latent  defects 1346 

Reasonable  fitness 1347 

Article  originally  designed  for  different  use  —  Second-hand  goods  1348 

Warranty  not  implied  where  buyer  selects  the  article  or  a  spe- 
cial and  ascertained  article  is  ordered 1349 

■  Nor  where  qualities  are  specified  by  the  buyer 1350 

Specification  by  seller 1351 

Manufacturer  wan-ants  kind,  materials  and  workmanship 1352 

Also  that  goods  are  new  and  of  his  own  make 1353 

Warranty  of  fitness  by  breeder  or  grower. 1354,  1355 

g.  Fitness  for  Food. 
Sale  by  dealer  of  provisions  for  consumption  by  buyer  implies  war- 
ranty of  fitness  for  food 1356 

How  when  seller  is  not  dealer ." 1357 

Other  circumstances  raising  warranty 1358 

No  implied  warranty  of  purity  of  water  furnished  by  water  com- 
panies     ...         1359,1360 


TABLE    OF    CONTEXTS.  Xll 

References  are  to  sections. 
CHAPTER  VI. 

OF  PERFORMANCE  BY  THE  PURCHASER. 

In  general 1361 

How  subjects  classified 1363 

CHAPTER  VII 
OF  ACCEPTANCE  BY  THE  BUYER. 

In  general 13G3 

What  meant  by  acceptance 1364 

In  what  cases  requisite -13"0 

1.  Acceptance  in  Case  of  Present  Sale. 

Acceptance  here  contemporaneous  with  contract 1366 

Receipt  where  delivery  postponed 1!,)7 

Waiver  of  irregular  delivery •  1^G8 

2.  Acceptance  in  Case  .f  Executory  Contract. 

Necessity  and  nature  of  acceptance  here 1 369 

What  is  meant  by  acceptance  in  these  cases 1370,  1371^ 

What  buyer  is  bound  to  accept 1372 

When  and  where  buyer  is  bound  to  accept 1373 

Waiver  of  irregular  delivery    *374 

Buyer's  right  of  inspection  before  acceptance 1373,  1376 

Time,  place  and  method  of  test 13*3 7 

Right  to  use  or  consume  goods  in  test  1378 

Express  acceptance ">™ 

Implied  acceptance  — Retention  beyond  reasonable  time 1380, 1381 

Retention  beyond  agreed  time 1382 

Acceptance  after  test  agreed  upon  — Failure  to  give  notice  1383,  1384 

Waiver  of  the  notice  138">.  1386 

Acts  of  ownership  indicating  acceptance 1387 

Effect  of  acceptance 1388 

As  waiver  of  time 1389 

As  waiver  of  quantity 1390 

- —  As  waiver  of  quality  —  1.  Where  there  was  no  warranty 1391 

2.  Where  there  was  implied  warranty  or  condition 1392, 1393 

3.  Where  there  was  an  express  warranty 1394,  1395 

Effect  of  acceptance  where  contract  provides  that  it  shall  be  conclu- 
sive   1396 

Effect  of  acceptance  when  brought  about  by  fraud,  mistake  or  prom- 
ise to  remedy 13  J7 

Effect  of  acceptance  or  rejection  in  part 1398-1401 

Rejection  — Method  and  effect 140>3>  1403 


Xlii  TABLE   OF   CONTENTS. 

References  are  to  sections. 

CHAPTER  VIII. 

OF  PAYMENT  OF  THE  PRICE. 

In  general . . .  1404 

I.  When  Payment  is  Due. 

Considerations  controlling 1405,  1406 

When  no  term  of  credit,  payment  and  delivery  presumptively  con- 
temporaneous    1407 

Same  rule  applies  to  executory  contracts. . .    1408 

Where  seller  is  to  do  something  before  payment 1409 

Where  term  of  credit  is  agreed  upon 1410 

Where  credit  procured  by  fraud 1411 

Delivery  of  the  goods  not  necessary 1412-1414 

By  contract  payment  may  be  due  before  title  passes 1415 

Demand  for  payment  not  necessary 1416 

IL  Place  of  Payment. 

When  no  place  of  payment  specified,  debtor  must  seek  creditor 1417 

III.  The  Amount  to  be  Paid. 

Amount  is  price  agreed  upon  1418 

Payment  of  part  does  not  discharge  the  whole 1419 

Exceptions 1420 

IV.  The  Medium  of  Payment. 

Unless  otherwise  agreed,  payment  to  be  in  lawful  money 1421 

Money  must  be  genuine 1422 

Payment  by  bill  or  note  —  Buyer's  note  presumptively  not  payment. .  1423 

Contrary  rule  in  few  States 1424 

Note  of  third  person 1425 

Presumptions  not  conclusive 1426 

Action  upon  note  or  original  consideration 1427 

Extension  of  time 1428 

Acceptance  of  forged  or  invalid  note  1429 

Note  of  insolvent 1430 

Acceptance  of  note  induced  by  fraud 1431 

Conflict  of  laws 1432 

Check  or  draft  as  payment ...  1433 

■ Certification  does  not  affect 1434 

Burden  of  proof 1435 

Dishonored  or  forged  check  1436 

Payment  in  seller's  own  note  or  debt 1437 

Set-off 1438 

Payment  in  goods 1439-1441 

If  goods  not  delivered  payment  due  in  cash 1442 


TABLE    OF    CONTENTS.  xliii 

References  are  to  sections. 

IV.  To  Whom  Payment  to  be  Made. 

To  the  seller  or  his  agent 1443 

1.  Implied  Authority  to  Receive  Payment. 

General  considerations 1444 

Authority  to  receive  payment  not  implied  from  possession  of  bill 1445 

Agent  having  possession  or  other  indicia  of  ownership  may  receive 

payment 1446 

Agent  to  sell  merely  or  to  solicit  orders,  without  possession  of  goods, 

not  authorized  to  receive  payment 1447 

When  traveling  salesmen  may  receive  payment 1448 

When  payment  to  agent  part  of  terms 1449 

Notice  of  want  of  authority 1450 

How,  when  agency  unknown 1451, 1452 

When  authority  to  receive  payment  implied  from  possession  of  secu- 
rities   1453 

Whether  authority  to  receive  payment  implied  from  relation  of  par- 
ties —  Husband  and  wife  —  Parent  and  child 1454 

2.  Construction  of  the  Authority. 

Can  receive  nothing  but  money 1455 

No  authority  to  release  or  compromise  the  debt 1456 

May  receive  part  payment 1457 

But  may  not  extend  time 1458 

Not  authorized  to  receive  before  due 1459 

No  authority  to  take  checks 1460 

If  authorized  to  take  check  or  note,  has  no  authority  to  indorse  and 

collect  it 1461 

Authority  to  collect  does  not  authorize  sale 1462 

No  authority  to  deal  with  funds  collected 1463 

May  give  receipt  or  discharge 1464 

,  VI.  By  Whom  Payment  to  be  Made. 

By  purchaser  or  his  agent , ...  1465 

By  stranger 1466, 1467 


BOOK  V. 
OF  REMEDIES  FOR  NON-PERFORMANCE. 


CHAPTER  I. 

PURPOSE  OF  BOOK  V. 

In  general 1468 

How  remedies  classified 1469 


Xliv  TABLE    OF   CONTENTS. 

References  are  to  sections. 
CHAPTER  II. 

OF  THE  REMEDIES  OF  THE  SELLER  AGAINST  THE  GOODS. 
In  general 1470-1472 

I.  The  Seller's  Lien. 
What  here  included 1473 

1.  Of  the  Lien  in  General. 

Seller  has  a  lien  to  secm-e  payment 1474 

What  the  lien  secures  1475 

What  claims  the  lien  precedes  1476 

2.  Waiver  or  Abandonment  of  the  Lien. 

Waiver  of  the  lien  —  Expressly  or  by  implication 1477, 1478 

Waiver  by  giving  credit 1479,  1480 

Waiver  by  taking  bill  or  note 1481 

Lien  abandoned  by  unconditional  delivery 1482-1484 

Lien  not  lost  by  delivery  which  passes  the  title  but  does  not 

change  possession 1485,  1486 

So  lien  not  lost  if  possession  retained,  though  seller's  attitude  lias 

changed 1487 

Lien  not  lost  by  special  and  qualified  delivery 1488, 1489 

Lien  not  lost  if  possession  secured  by  fraud 1490 

How  when  goods  already  in  possession  of  buyer 1491 

How  when  buyer  has  changed  character  of  property 1492 

How  when  goods  in  possession  of  bailee 1493,  1494 

How  when  goods  on  public  wharf  or  the  premises  of  a  stranger. .  1495 

How  when  goods  ai*e  delivered  to  a  carrier 1496,  1497 

Transfer  by  bill  of  lading 1498 

Effect  of  delivery  of  part  of  the  goods 1499 

Effect  of  part  payment 1500 

3.  Estoppel  in  Favor  of  Sub-purchasers. 

Lien  good  against  sub-purchaser  unless  seller  estopped  —  Estoppel  by 

conduct 1501-1503 

Form  of  delivery  order  or  warrant  as  estoppel 1504-1506 

Warehouse  receipts  in  the  United  States 1507 

4.  Revival  of  Lien  on  Lnsolvency  of  Purchaser. 

Revival  of  lien  —  Insolvency  of  purchaser  before  actual  delivery  1508, 1509 

Insolvency  of  buyer  before  expiration  of  credit 1510, 1511 

Insolvency  of  buyer  before  delivery  order  complied  with. . .  1512-1514 

Same  subject  —  Taking  note  —  Giving  receipted  bill.  etc. . .  1515-1517 

Same  subject —  Instalment  delivery  —  Subsequent  appropriation  1518 

What  constitutes  insolvency 1519, 1520 


TABLE   OF   CONTENTS.  Xlv 

References  are  to  sections. 

5.  Revival  of  Lien  on  Expiration  of  Credit. 

Lien  revives  on  expiration  of  credit 1521 

6.  Effect  of  Tender  of  Price, 

Lien  lost  by  tender  of  price 1522 

7.  Effect  of  Claiming  Lien. 

Claim  of  lien  does  not  rescind  sale 1523 

II.  The  Seller's  Right  of  Stoppage  in  Transitu. 

What  here  included 1524 

L  The  General  Nature  of  the  Right. 

The  origin  and  nature  of  the  right 1525,  1526 

Exists  only  when  title  has  passed 1527 

Right  favored  in  the  law 1528 

2.  Who  May  Stop  the  Goods. 

Right  may  be  exercised  only  by  vendor  or  one  in  his  position 1529 

By  factor  who  has  bought  goods  for  principal 1530 

By  person  who  pays  price  for  vendee 1531 

But  not  by  vendor  of  seller 1532 

Nor  by  unpaid  agent  of  seller 1533 

Principal  who  has  consigned  goods  to  factor  may  stop 1534 

Surety  for  the  buyer  may  not  stop  the  goods 1535 

Seller  of  executory  interest  may  exercise  the  right 1536 

Stoppage  by  agent  for  his  principal  —  Ratification 1537 

3.  Against  Whom  Stoppage  May  be  Effected. 

Against  buyer  or  one  standing  in  his  attitude 1538 

Only  against  an  insolvent  buyer 1539 

Evidence  of  insolvency 1540 

Absconding,  attachment,  etc.,  not  enough 1541 

Insolvent  when 1542-1544 

4.  Under  Wliat  Conditions  Stoppage  May  be  Effected, 

Goods  can  be  stopped  only  while  in  transit 1545,  1546 

Existence  of  a  transit — Goods  transported  on  ship  or  other  vehicle 

owned  or  chartered  by  purchaser 1547 

Shipment  on  vessel  owned  by  buyer 1548 

Shipment  on  vessel  chartered  by  buyer 1549 

Same  subject  —  Reserving  control 1550 

Shipment  by  carrier  designated  by  the  buyer 1551 

Shipment  through  purchasing  agent  of  buyer 1552 

How  long  the  transit  continues  —  In  general 1553-1555 

Buyer  may  intercept  the  goods 1 556 

Is  carrier's  consent  necessary 1557 


Xlvi  TABLE    OF    CONTENTS. 

References  are  to  sections. 

Interception  by  buyer's  agent  —  Agent  to  receive  or  forward. .  .  1558-1561 
Interception  by  sub-purcbaser  —  Mere  resale  does  not  defeat  stoppage  1562 
Indorsement  of  bill  of  lading 1563-1567 

Pledgee  of  goods  —  Bill  of  lading  as  security 1568 

Absolute  sale  of  goods,  but  purcbase  price  unpaid  — Rigbt  to 

reacb  proceeds 1569, 1570 

Interception  by  buyer's  creditors  —  Attachment  —  Garnishment 1571 

Interception  by  seller  as  a  creditor  —  Attachment  by  seller 1572 

When  transit  ends  —  Arrival  at  destination 1573-1577 

Goods  not  yet  unloaded 1578 

Goods  in  carrier's  or  other  warehouse  —  Attornment 1579, 1580 

Carrier  as  bailee  for  bu}Ter 1581-1583 

Deposit  of  goods  in  custom-house 1584-1587 

Goods  in  hands  of  local  truckman 1588-1590 

How,  when  consignee  refuses  to  receive  goods 1591, 1592 

Who  may  take  possession  for  vendee  —  Agent  '. 1593 

Administrator  —  Assignee 1594 

Not  sheriff 1595 

Or  mortgagee 159& 

Actual  or  constructive  possession  by  purchaser 1597-1601 

Effect  of  part  delivery 1602 

Effect  of  part  payment 1603 

Effect  of  taking  note 1604 

5.  How  Stoppage  May  be  Effected. 

No  particular  method  necessary  —  Notice  to  stop 1605-1607 

To  whom  notice  to  stop  should  be  given  —  Vendee 1608 

Carrier's  agent , 1609 

Carrier's  lien  must  be  satisfied 1610 

6.  Effect  of  Stopping  the  Goods. 

Restores  right  of  possession 1611 

Does  not  rescind  the  sale 1612 

Remedy  of  seller  to  secure  payment 1613 

III  Seller's  Right  of  Stoppage  on  Executory  Sale. 

Nature  of  this  right 1614-1616 

How  right  exercised  —  Its  effect 1617 

IV.  Option  of  Seller  as  to  Remedies. 

What  remedies  seller  may  pursue 1618, 1619 

Equitable  remedies 1620 

V.  The  Seller's  Right  of  Resale. 
How  here  considered. 1621 


table  of  contents.  xlvii 

References  are  to  section?. 

1.  When  Tith  has  Passed. 

In  general 1622.1623 

To  what  kinds  of  property  right  of  resale  attaches 1024 

When  right  may  be  exercised 

Duty  to  hold  goods  until  price  due, 1026. 1627 

Buyer's  right  to  redeem  the  goods  

Seller  as  agent  of  the  buyer 1029.  1080 

Buyer  as  agent  of  seller 1631 

•  of  resale  ; 1632 

1.  Notice  of  seller's  purpose  to  resell 1633-1636 

2.  Notice  of  time  and  place  of  resale 1037 

Place  of  reside 163* 

The  manner  of  resale.  1640,  l641 

Time  of  resale l'^~ 

Effect  of  resale  in  determining  value 1043 

Title  of  the  purchaser  at  the  resale  1644 

2.  Right  of  Resale  on  Executory  Coni 

General  considerations 1645,  1646 

Choice  of  remedies 1647,1648 

Nature  of  ri^lit  of  resile 1649 

How  resale  should  be  made 1650 

CHAPTER  III. 

REMEDIES  OF  THE  SELLER  AGAINST  THE  BUYER  PERSONALLY. 

Purpose  of  this  chapter 1651 

What  questions  arise 1652 

I.  Where  the  Title  has  Passed. 

In  general 1653 

1.  Where  the  Goods  have  been  Dclivtred. 

Recovery  of  price  the  chief  object 1654 

Seller  cannot  rescind  for  mere  non-payment  of  price 1655 

May  rescind  for  fraud 1656 

May  reserve  lien  by  contract 1657 

Seller  may  recover  price  as  for  goods  sold  and  delivered 

When  credit  given 1 659 

When  no  credit  given 1660 

When  payment  of  price  is  due  —  On  delivery 1661,  1662 

At  expiration  of  term  of  credit 1663 

How  when  bill  or  note  was  to  be  given  for  the  price  1664 

Actual  delivery  and  acceptance  necessary  to  sustain  count  for  goods 

sold  and  delivered .  1665 

Actions  for  deceit 1666 


Xlviii  TABLE    OF   CONTENTS. 

References  are  to  sections. 

2.  Where  the  Goods  have  not  been  Delivered. 

Title  passing  though  goods  not  delivered    1667 

Recovery  of  price  where  seller  yet  to  do  something  to  the  goods 1668 

Recovery  of  price  where  seller  holds  as  bailee  for  buyer 1669 

Recovery  of  price  where  seller  claims  his  lien 1670, 1671 

Recovery  of  price  where  seller  stops  goods  in  transit 1672 

Recovery  of  residue  of  price  after  resale  in  pursuance  of  lien 1673 

Recovery  of  price  where  buyer  fails  or  refuses  to  take  the  goods    1674-1677 

Other  remedies  in  like  cases 1678, 1679 

Vendor  may  resell  and  recover  deficiency 1680 

Right  to  keep  property  as  his  own  and  recover  deficiency  . .  1681, 1682 

II.  Where  the  Title  had  not  Passed. 
In  general •  1683 

1.  Where  the  Goods  have  been  Delivered. 

Recovery  of  goods  and  damages  for  breach  of  contract. 1684-1688 

2.  Where  the  Goods  have  not  been  Delivered. 
Where  title  has  not  passed  and  goods  not  delivered,  action  for  dam- 
ages is  remedy 1689 

Measure  of  damages  usually  difference  between  contract  price  and 

market  price  at  time  and  place  of  delivery 1690 

Time  for  delivery 1691 

How  market  value  shown  —  Resale 1693 

Scope  of  evidence 1693 

Full  contract  price  after  tender  allowed  in  some  cases 1694 

Contracts  for  sale  of  stocks 1695 

Contracts  for  manufacture  of  chattel 1696 

Contracts  for  production  of  that  which  lias  no  market  value 1697 

This  not  the  general  rule 1698 

Countermanding  performance  of  executory  contract 1699 

Countermanding  order  after  part  delivery 1700 

Countermanding  order  for  goods  when  partly  manufactured 1701 

Countermanding  order  before  manufacture  begun 1702,  1703 

Loss  of  profits 1704 

Form  of  repudiation 1705 

Effect  on  seller's  rights  of  repudiation  by  the  buyer 1706 

Seller  not  obliged  to  treat  it  as  a  present  breach 1707 

Contract  kept  alive  for  the  benefit  of  both  parties 1708 

Measure  of  damages  if  seller  do. s  treat  it  as  present  breach.   1709-1712 

Treating  contract  as  rescinded  and  recovering  quantum  valebat 1713 

CHAPTER  IV. 

OF  THE  REMEDIES  OF  THE  BUYER  AGAINST  THE  SELLER. 

Purpose  of  this  chapter. 1714 

How  subjects  classified. 1715 


TABLE    OF    CONTENTS.  xlix 

References  are  to  sections. 

L  Where  the  Title  has  not  Passed. 

In  general 1716 

1.  Where  the  Goods  have  not  been  Delivered. 

Seller's  breach  of  contract  to  sell  and  convey 1717 

Specific  performance  not  usually  awarded 1718 

Where  chattel  is  unique 1719 

Where  chattel  of  peculiar  importance 1720-1723 

Where  legal  remedy  inadequate 1724 

Where  chattel  necessary  to  enjoyment  of  estate 1725 

Contracts  for  sale  and  delivery  in  instalments 1726 

Contracts  for  sale  of  corporate  stocks  and  bonds 1727, 1728 

Contracts  for  sale  of  inventions,  patents  or  patented  articles 1729 

Contracts  for  sale  of  debts,  notes,  etc 1730 

Contracts  for  sale  of  growing  trees 1731 

Specific  performance  not  to  be  made  substitute  for  damages 1733 

Will  not  be  granted  where  contract  ambiguous,  uncertain  or  un- 
fair    1733 

Action  at  law  for  damages  the  usual  remedy 1734,  1733 

Measure  of  damages  usually  difference  between  contract   price  and 

value  of  goods  at  time  and  place  of  delivery 1736-1740 

How.  when  price  paid  in  advance 1741 

How,  when  no  market  at  place  of  delivery 1742 

How,  when  goods  have  no  market  value 1743 

How,  when  goods  have  neither  market  nor  actual  value 1744 

How,  when  no  difference  between  contract  price  and  market  value  1 745 

How,  when  goods  to  be  delivered  in  instalments 1746 

How,  when  goods  to  be  delivered  "on  or  before"  a  certain  day. .   1747 

How,  when  no  time  fixed  for  delivery 1748 

How,  when  delivery  postponed  at  seller's  request 174!) 

How,  when  seller  repudiates  before  time  for  performance.. .  1750-1753 

How,  when  seller  refuses  to  give  credit  as  agreed 1754,  1755 

Measure  of  damages  where  special  circumstances  were  in  contempla- 
tion.    1756 

General  rule  of  damages  for  breach  of  contract  —  Hadley  v.  Baxen- 

dale 1757-1759 

How  the  rule  applies  to  sales 1760 

Loss  of  profits  on  resale  contracted  for 1761 

Resale  not  contemplated 1762 

Resale  known  to  vendor 1763-1765 

Extent  of  knowledge  required  —  Particular  price 1766, 1767 

Cost  of  procuring  substitute 1768 

Costs  of  defending  action  brought  by  sub-vendee 1769 

Summary  of  English  cases -  1770 

Measure  of  damages  where  goods  intended  for  particular  use. . .  1771-1776 


1 


TABLE    OF    CONTENTS. 


References  are  to  sections. 


No  damages  for  speculative  or  remote  losses 1777-1779 

Pleading  special  damages  1780 

2.  Where  the  Goods  have  been  Delivered. 

Substantially  same  remedies  as  in  preceding  cases 1781 

II.  Where  the  Title  has  Passed. 

In  general 1782 

1.  Where  the  Goods  are  not  Delivered. 

Specific  performance  of  agreement  to  deliver 1783 

Action  for  damages  for  breach  of  agreement  to  deliver 1784 

Measure  of  damages 1785 

Trover  —  Measure  of  damages 1786 

How  when  goods  of  fluctuating  value  —  Stocks,  bonds,  etc . .  1787,  1788 

2.  Where  the  Goods  have  been  Delivered. 

What  questions  arise 1789 

a.  Where  there  was  Delay  in  Delivery. 
Measure  of  damages  for  delay 1790-1792 

b.  Where  Title  Fails  in  Whole  or  in  Part. 

Recovery  of  consideration 1793 

Damages  for  breach  of  warranty  of  title 1794 

When  right  of  action  accrues 1795 

What  constitutes  eviction 1796 

Warranty  broken  by  incumbrances 1797 

Evidence  of  eviction  —  Judgment  —  Costs  of  suit ' 1798 

c.  Where  Goods  Defective  in  Kind,  Quality  or  Condition. 

In  general 1799 

Caveat  emptor 1800 

Express  stipulation  for  return  or  other  remedy 1801 

Rejection  of  goods 1802,  1803 

Rescission  for  fraud 1804 

Rescission  of  breach  of  warranty 1805 

I  n  pursuance  of  agreement 1806 

Waiver  of  special  remedy  —  Suit  for  breach  of  warranty 1807 

Option  where  law  gives  right  to  rescind 1808 

Action  for  breach  of  warranty 1809 

What  form  of  action  —  Contract  or  tort?  ...    1810 

Notice  <>f  defect  —  Offer  to  return 1811 

Conditional  warranty 1812,1813 

Vendee  not  bound  to  anticipate  or  search  for  defects 1814 

Who  liable  for  breach  of  warranty   -Principal  —Agent 1815 

Purchaser  of  draft  witli  bill  of  lading  attached 1816 


TABLE    OF    CONTENTS.  H 

References  are  to  sections. 

Measure  of  damages  for  breach  of  warranty  —  In  general 1817. 1818 

Time 1819 

Place 1820 

Measure  of  damages  for  breach  of  warranty  when  goods  bought  for 

special  purpose 1821 

Damages  for  losses  incidental  to  use  or  purpose  contemplated  1822-1825 

Expenses  incurred 1826 

Gains  prevented 1827, 1828 

Purely  speculative  profits 1829-1831 

Losses  not  contemplated 1832 

Measure  of  damages  where  goods  bought  to  be  resold 1833 

Damages  paid  sub-vendee  for  breach  of  same  warranty 1834 

Buyer  may  recover  for  breach  of  warranty  though  he  bas  not  paid  the 

price 1835 

Or  though  lie  has  paid  the  price 1836 

Or  though  he  may  have  resold  the  goods 1837 

Or  though  he  may  have  made  a  profit  on  them 1838 

Remedies  for  deceit  or  fraud 1839 

Elements  of  fraud 1840 

Reliance  on  representations. 1841 

Representations  must  have  been  proximate  cause  of  injury 1842 

Measure  of  damages 1843 

Buyer  may  recoup  damages  in  action  by  seller  for  the  price 1844 

Defense  of  failure  of  consideration 1845-1847 

Recovery  as  for  failure  of  consideration 1848-1850 


TABLE  OP  CASES  CITED. 


References  are  to  sections:  Vol.  I,  §§  1-707;  Vol.  IT,  §§  798-1850. 


Abut  v.  Atkinson  (21  La.  Ann.  414\ 

520. 
Abberger  v.  Marrin  (102  Mass.  70j, 

789. 
Al.liott  v.  (iilchrist  (38  Me.  260),  311. 
Abbott  v.  Goodwin  (87  Me.  203),  L050. 
Abbott  v.  Eapgood  (150   Muss.   848), 

1771. 
Abbott  v.Reeves  (49  Pa.  St.  494),  1727. 
Abbott  v.  Shepard  (48  N.  H.  14),  247, 

251,  428. 
Aborn  v.  Merchants' Despatch  Trans 

portation  Co.  (185  Mass.  288),  269. 
Abrahams  v.  Weiller  (87   111.   179), 

1447. 
Accumulator  Co.  v.  Dubuque  St.  By. 

Co.  (27  U.  S.  App.  3G4),  1822,  1826. 
Acebal  v.  Levy  (10  Bing.  876),  207, 

208,  870,  138,  448. 
Acker  v.  Campbell  (23  Wend  872), 

928,  1437. 
Acker  v.  Eimmie  (87  Kan.  276),  828. 
A( Tama n  v.  Morris  (8  C.  B.  449),  508. 
Adams  V.  Ames  (19  Wash.  425),  Hit:!. 
Adams  v.  Beall  (67  M.I.  58),  107. 
Adftms  v.  Berg (67  Miss.  175), 599, 603. 
Adams  v.  Coulliard    (102    Mass.    167), 

1013,  1018,  1027. 
A  da  ins  v.  Dale  (29  Ind.  273),  1186. 
Adams  v.  Foley  (4  Iowa,  44),  166. 
Adams  v.  Fraser  (49  U.  S.  App.  481), 

1 75. 
Adams   v.   Frazer  (82  Fed.  R.  211), 

1  117. 
Adams  v.  (lay  (19  Vt.  358),  1056, 1057. 
e 


Adams  v.  Eamell  (2  Doug.  73),  1053, 
1054 

Adams  v.  Johnson  (15  111.  345),  1237, 

1245. 
Adams  v.   Lindsell  (1  Barn.  &  Aid. 

681),  244,  247,  251,  252. 
Adams  v.  Messinger  (117  Mass.  185), 

1720. 
Adams  v.  McMillan  (7  Port.  73),  438, 

461. 
A  < la  ins  v.  O'Connor  (100  Mass.  515), 

543,  1437. 
Adams  v.   Roscoe  Lumber  Co.   (159 

N.  Y.  176),  546,  555. 
Adams  v.  Schiller  (11  Colo.  15),  885. 
Adams  v.  Wordley  (1  M.  &  W.  374), 

1204. 
Adams  Mining  Co.  v.  Senter(26  Mich. 

78),  390,  892,  526. 
Adams  Radiator  Works  v.  Schnader 

(155  Pa.  St.  394),  664 
Aderholt    v.   Embry  (78    Ala.   185), 

711. 
A  die  v.  Clark  (L.  R.  3  Ch.  Div.  134) 

834. 
Adler  v.  Railroad   Co.  (92  Mo.  242) 

200. 
Adler  v.  Thorp  (102  Wis.  70),  901. 
Adler  v.  Wagner  (47  Mo.  App.  25) 

1174. 
Adrian  v.  Lane  (18  S.  C.  188),  175. 
.Ktna   Ins.  Co.  v.  Reed  (33  Ohio  St. 

288),  872,  874. 
.I'.tna  L  Ins.  Co.  v.  Sellers  (154  Ind. 

370),  72. 


liv 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


JEtna  Powder  Co.  v.  Hildebrand  (137 

Ind.  462),  49. 
Ager  v.  Duncan  (50  Cal.  325),  947. 
Agins  v.  Great  Western  Colliery  Co. 

(1  Q.  B.  413),  1769. 
Agnew  v.  Dumas  (64  Vt.  147),  365. 
Aguirre  v.  Allen  (10  Barb.  74),  466. 
Aguirre  v.  Parmelee  (22  Conn.  475), 

1552. 
Ahearn  v.  Ayres  (38  Mich.  692),  222. 
Ahem  v.  Baker  (34  Minn.  98),  257. 
Ahern  v.  Goodspeed  (72  N.  Y.  108), 

1281,  1282,  1284. 
Aiken  v.  Blaisdell  (41  Vt.  655),  1013, 

1019,  1027,  1044,  1046,  1051. 
Aiken  v.  Hyde  (99  Mass.  183),  667. 
Akernian  v.  Humphrey  (1  Carr.  &  P. 

53),  1560. 
Akin  v.  Jones  (93  Tenn.  353),  49. 
Albany  City  Savings  Institution  t. 

Burdick  (87  N.  Y.  40),  881. 
Albemarle   Lumber    Co.   v.    Wilcox 

(105  N.  Y.  34),  205,  213,  485. 
Albright  v.  Griffin  (78  Ind.  182),  1429. 
Albright   v.   Meredith  (58  Ohio  St. 

194),  5S8.  619,  629. 
Alden  v.  Hart  (101  Mass.  576),  1340. 
Alden  v.  Wright  (47  Minn.  225).  1843. 
Alderman  v.  Eastern  R.  Co.  (115  Mass. 

333),  710.  788. 
Alderson  v.  Temple  (4  Burr.    2235), 

L592. 
Alderton  v.  Buchoz  (3  Mich.  322),  382, 

383. 
Aldrioh  v.  Bailey  (132  N.  Y.  85),  64.  72. 
Aldrich  v.  Blarkston  (128  Mass.  143), 

1052. 
Aldrich  v.  Grimes  (11  N.  II.  194),  121. 
Aldrich  v.  Jackson  (5  K.  I.  218),  835. 
Aldrich  v.  Pyatt  (61  Barb.  391),  350. 
Aldridge  v.  Johnson  '7  EL  &  B.  885), 

:  27,  729,  730,  735,  757. 
Alexander  v.  Dutton    58  N.  ir.  282), 

1270. 
Alexander  v.  Gardner  (1  Bing.  671), 

178,  520,  732,  740. 


Alexander  v.  Gibson  (2  Camp.    555), 

1281,  1294. 
Alexander  v.  Hutchinson  (2  Hawks, 

535),  121. 
Alexander  v.  Miller  (16  Pa.  St.  215), 

178. 
Alexander  v.  Oneida  Co.  (76  Wis.  56), 

363. 
Alexander  v.  Swackhamer  (105  Ind. 

81),  149. 
Alexander  v.  Vanderzee  (L.  R.  7  C. 

P.  530),  653. 
Alexander  v.  Worman    (6  H.  &    N. 

100  \  845. 
Alewyn  v.  Pryor  (R.  &  M.  406),  652. 
Alfred  Shrimpton   &  Sons  v.  Phil- 
brick  (53  Minn.  366),  1841. 
Allan  v.  Lake  (18  Q.  B.  560),  1333. 
Allard  v.  Greasert  (61  N.  Y.  1),  349, 

365. 
Allen  v.  Anderson   (3   Humph.  581), 

1805. 
Allen  v.  Bennett  (3  Taunt.  169),  428, 

430,  434,  449. 
Allen  v.  Berryhill  (27  Iowa,  534),  72, 

74,82,83. 
Allen  v.  Delano  (55  Me.  113),  636. 
Allen  v.  Duffie  (43  Mich.  1),  1052,  1057. 
Allen  v.  Dykers  (3  Hill,  593),  1264. 
Allen   v.    Ford   (19    Pick.   217),   912, 

1411. 
Allen  v.  Gardiner  (7  R.  I.  22),  1052. 
Allen  v.  Hammond  (11  Pet.  63),  199, 

274. 
Allen  v.  Hartfield  (76  111.  358 \  1437. 
Allen  v.  Jarvis   (20  Conn.   38),    1092, 

1106.  1697. 
Allen  v.  Lardner  (78  Hun,  603).  132. 
Allen  v.  Maine  Central  R.  Co.  (79  Me. 

327),  1606.  1607,  1608. 
Allen  v.  Maury  (66  Ala.  10),  166,  676. 
Allen  v.  Minor  (2  Call.  70),  124. 
Allen  v.   Pearce  (84  Ga.   606),   1004, 

1050. 
Allen  v.  Pink  (4  M.  &  W.  140),  448, 
L255. 


TABLE    OF    CASES    CITED. 


Iv 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  IT,  §§  798-1850. 


Allen  v.  Williams  (12  Pick.  297),  7 -10. 

775,  788. 
Allen  v.  Woods  (24  Pa.  St.  76),  1125. 
Alley  v.  Winn  (134  Mass.  77),  184. 
Allgear  v.  Walsh  (24  Mo.  App.  134), 

491. 
Allis  v.  Billing  (6  Met.  415),  72,  77. 
Allis  v.  McLean  (48  Mich.  428),  1831. 
Allis  v.  Nininger  (25  Minn.  525),  1798. 
All  man  v.  Davis  (2  Ired.  12),  508. 
Allshouse  v.  Ramsay  (6  Whart,  331), 

1417. 
Allyn  v.  Willis  (65  Tex.  65),  1572. 
Alpha  Check-Rower  Co.  v.  Bradley 

(105  Iowa,  537).  49,  1259,  1829. 
Alpha  Mills  v.   Watertown  Co.  (116 

N.  C.  797),  1815. 
Alt  v.  Grosclose  (61   Mo.  App.  409), 

336. 
Alton  v.  Harrison  (L.  R.  4  Ch.  622). 

960. 
American  Brick  &  Tile  Co.  v.  Drink- 

house  (59  N.  J.  L.  462),  1423. 
American   Bridge  Co.  v.  Bullen  Co. 

(29  Oreg.  549),  1702. 
American  Electrical  Constr.  Co.  v. 

Consumers'  Gas  Co.  (3  TJ.  S.  App. 

Ill),  1304. 
American  Express  Co.  v.  Fletcher  (25 

Ind.  492),  887. 
American  Express  Co.  v.  Stack  (29 

Ind.  27),  887. 
American  Exp.  Co.  v.  Wilbie  (79  111. 

92),  924. 
American   Extract  Co.  v.  Ryan  (104 

Ala.  267),  1129. 
American  Freehold  Mtg.  Co.  v.  Dykes 

(111  Ala.  178),  100,  103,  109,  121. 
American   Hoist  &   Derrick   Co.  v. 

Johnson  (114  Mich.  172),  1154. 
American  Mortgage  Co.  v.   Wright 

(101  Ala.  658),  102. 
American  Oak  Leather  Co.  v.  Porter 

(94  Iowa,  117),  426,  445. 
American    Sugar    Refining    Co.    v. 

Fancher  (145  N.  Y.  552),  925. 


American  White  Bronze  Co.  v.  Gil- 
lette (88  Mich.  231),  811,  1156. 
Ames,  Ex  parte  (1  Low.  561),  636. 
Ames  v.  Drew  (31  N.  H.  475),  1462. 
Ames  v.  Jones  (77  N.  Y.  614),  1321. 
Ames  v.  Moir  (130  111.  582),  1618, 1682. 
Ames  v.  Quimby  (96  U.  S.  324),  210. 
Ames  v.  Smith  (65  Minn.  304),  228. 
Ames  v.  Witbeck  (179  111.  458),  1718, 

1727. 
Ames  Iron  Works  v.  Rea  (56  Ark.  450), 

606. 
Ames  Iron  Works  v.  Richardson  (55 

Ark.  642),  588,  590,  624. 
Amis  v.  Kyle  (2  Yerg.  31),  1052. 
Amory  v.  Brodick  (5  B.  &  Aid.  712), 

1097. 
Amson  v.  Dreher  (35  Wis.  615),  362, 

373. 
Anderson  v.  Anderson  (64  Ala.  403), 

970. 
Anderson   v.*  Brenneman  (44  Mich. 

198),  964,  968. 
Anderson  v.  Bruner  (112  Mass.  14), 

1291. 
Anderson    v.   Crisp    (5   Wash.   178), 

702. 
Anderson  v.  Frank  (45  Mo.  App.  482), 

1638,  1639,  1643. 
Anderson  v.  Gill  (79  Md.  312),  1433. 
Anderson  v.  Goff  (72  Cal.  65),  1134. 
Anderson  v.  Harold  (10  Ohio,  399), 

434,  449. 
Anderson  v.  Jett  (89  Ky.  375),  208. 
Anderson  v.  May  (50  Minn.  280),  1103. 
Anderson  v.  Olsen  (188  111.  502),  1718, 

1729. 
Anderson  v.  Read  (106  N.  Y.  333),  1504. 
Anderson  v.  Roberts  (18  Johns.  515), 

150.  946,  977. 
Anderson  v.  Smith  (33  Md.  465),  132. 
Anderson  v.  Soward  (40  Ohio  St.  325), 

102. 
Anrling  v.  Perkins  (29  Tex.  348),  1794. 
Andrew  v.  Dieterich  (14  Wend.  31), 

524,  535,  555. 


lvi 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Andrews  v.  Chenery  (62  N.  H.  40*), 

730,  734. 
Andrews  v.  Clark  (72  Md.  396),  1787. 
Andrews  v.  Colorado  Savings  Bank 

(20  Colo.  313),  564,  573,  578. 
Andrews  v.  Costican  (30  Mo.  App.  29), 

336. 
Andrews  v.  Durant  (11  N.  Y.  35),  755, 

759. 
Andrews  v.    German  Nat.   Bank  (9 

Heisk.  211),  1434. 
Andrews  v.  Jenkins  (39  Wis.  476),  148. 
Andrews  v.   Hoover  (8  Watts,  239), 

1643,  1692. 
Andrews  v.  Kneeland  (6  Cow.  354), 

1287,  1320. 
Andrews  v.   Schreiber   (93  Fed.   R. 

367),  1818,  1838. 
Andrews  v.  Smith  (34  Hun,  20),  711. 
Angel  v.  McLellan  (16  Mass.  28),  127, 

128,  129. 
Angier  v.  Taunton  Paper  Co.  (1  Gray, 

621),  630. 
Anglo-American  Prov.  Co.  v.  Pren- 
tiss (157  111.  506),  227,  232,  1013, 1084, 

1088.  1408. 
Anglo-Egyptian  Nav.  Co.  v.  Rennie 

(L.  R.  10  C.  P.  271),  755,  762. 
Angus  v.  Scully  (176  Mass.  357),  1102. 
Anheuser-Busch  Brewing    Ass'n    v. 

Mason  (44  Minn.  318),  1022. 
Ansley  v.  Green  (82  Ga.  181),  426. 
Anthony  v.  Halstead  (37  L.  T.  433), 

1276. 
Anthony  v.   Haneys  (8    Bing.    186), 

626. 
Anthony  v.  Unangst  (174  Pa.  St.  10). 

1032. 
Anvil  Min.  Co.  v.  Humble  (153  U.  S. 

540),  1090,  1106. 
Appersot)  v.  Moore  (30  Ark.  56),  202. 
Appleby  v.  Johnson  (L.  R  9  C.  P.  1 58 1, 

834 
Applegate  v.  Moffit  (60  Ind.  104).  L281. 
Appleman  v.  Michael  (43  Md.  269), 

740. 


Appleton  v.  Bancroft  (10  Mete.  236), 

964,  1193. 
Appleton  v.  Norwalk  Library  Ass'n 

(53  Conn.  4),  625. 
Arbuckle  v.  Gates  (95  Va.  802),  46, 

49,  599,  603. 
Arbuckle  v.  Reaume  (96  Mich.  243), 

1052,  1057,  1059. 
Arbuckle   Bros.   v.    Kirkpatrick   (98 

Tenn.  221),  49. 
Archdale  v.  Moore  (19  111.  565),  1350, 

1352. 
Archer  v.  Baynes  (5  Ex.  625),  427. 
Argus  Co.,  Matter  of  (138  N.  Y.  557), 

1727. 
Argus  Co.  v.  City  of  Albany  (55  N.  Y. 

495),  431. 
Arkansas  Cattle  Co.  v.  Mann  (130  U. 

S.  69),  495,  564,  577,  1786. 
Arkansas    Smelting    Co.   v.    Belden 

Mining  Co.  (127  IT.  S.  379),  267. 
Arkwright  v.   Newbold  (17  Ch.  D. 

320),  856,  876. 
Armfield  v.  Tate  (7  Ired.  258),  1013. 
Armington  v.  Houston  (38  Vt.  448), 

597. 
Armitage  v.  Insole  (14  Q.  B.  728),  1106, 

1127,  1130. 
Armour  v.  Pecker  (123  Mass.  143),  546, 

549,  554,  564. 
Arms  v.  Ashley  (4  Pick.  71),  17. 
Armstrong  v.  Bufford  (61  Ala.  410), 

1272,  1311. 
Armstrong  v.   Freimuth  (78  Minn. 

94),  165. 
Armstrong  v.  Johnson  Tobacco  Co. 

(41  Mo.  App.  254),  1344. 
Armstrong  v.  Lawson  (73  Ind.  498), 

336. 
Armstrong  v.  Percy  (5  Wend.  535), 

L794,  1798,  L834, 
Armstrong  v.  St.  Paul  Co.  (48  Minn. 

118),  49. 
Axmsl  rong  v.  Toler  (24  U.  S.  258),  1014. 
Armstrong  v.  Turner  (49  Md.  589), 

1669. 


TABLE    OF    CASES    CITED. 


lvii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Arnholt  v.  Hartwig  (73  Mo.  485),  952. 
Arnold  v.  Carpenter  (16   R,  L  560), 

1471,  1513,  1622,  1633,  1643. 
Arnold  v.  Delano  (4  Cush.   33),  725, 
1117,   1474,   1479,  1485,  1486,  1492, 
1510,    1515,    1519,    1523,   1604,   1612, 
1670. 
Arnold  v.  Englernan  (103  Ind.  512), 

138. 
Arnold  v.  Richmond  Iron  Works  (1 

Gray,  434),  77,  83,  619. 
Arnot  v.  Coal  Co.  (68  N.  Y.  558),  208, 

1019,  1040. 
Arnstine  v.  Treat  (71  Mich.  561),  879. 
Arques  v.  Wasson  (51  Cal.  620;,  200, 

202. 
Artcher  v.  Zeh  (5  Hill,  200),  416. 
Arthus  v.  Moss  (1  Oreg.  193),  1794. 
Artman  v.  Ferguson  (73  Mich.  146), 

138. 
Asbill  v.  Standley  ( —  Cal.  — ),  964. 
Ascher  v.  Grand  Trunk  Ry.  Co.  (36 

Up.  Can.  Q.  B.  609),  1586, 1611. 
Ash  v.  Aldrich  (60  N.  H.  581),  328. 
Ashby  v.  West  (3  Ind.  170),  25. 
Ashcroft  v.  Butterworth  (136  Mass. 

511),  210,  225,  138. 
Ashcroft  v.  Morrin  (4  M.  &  G.  450), 

438. 
Ash  mead  v.  Hean  (13  Pa.  St,  584),  955. 
Ashmead  v.  Reynolds  (127  Ind.  441), 

72. 
Ashmore  v.  Cox  (1  Q.  B.  436),  1103. 
Ashworth  v.  Wells  (78  L.  T.  R.  136), 

1819,  1827. 
Askey  v.  Williams  (74  Tex.  294),  122, 

132. 
Aspell  v.  Hoshein  (98  Mich.  117),  1057. 
Aspinwall  Mfg.  Co.  v.  Johnson  (97 

Mich.  531),  49. 
Association  v.  Koch  (14  La.  Ann.  168), 

208. 
Atchinson   v.   Bruff  (50  Barb.   381), 

129. 
Atkin  v.  Barvvick  (1  Str.  165),  1591, 

1592. 


Atkins  v.  Cobb  (56  Ga.  86),  1334, 1392. 
Atkins  v.  Colby  (20  N.  H.  155),  1579, 

1606. 
Atkins  v.  Insurance  Co.  (5  Mete.  439), 

1136. 
Atkinson  v.  Bell  (8  B.  &  C.  277),  307, 

759. 
Atkinson  v.  Denby  (7  Hurl.  &  Norm. 

934),  1000. 
Atkinson  v.  Horridge  (Oliphant,  229), 

1270. 
Atkinson    v.   Morse  (63  Mich.   276), 

1709. 
Atkinson  v.  Truesdell  (127  N.  Y.  230), 

754. 
Atherton  v.  Newhall  (123  Mass.  141), 

365,  403. 
Atlantic  Dock  Co.  v.  New  York  (53 

N.  Y.  64),  1466. 
Atlee  v.  Bartholomew  (69  Wis.  43), 

244 
Attwood  v.  Emery  (1  Com.  B.  110), 

1 129,  1134. 
Atwater  v.  Clancy  (107  Mass.  369), 

1255,  1320,  1327. 
Atwater  v.  Hough  (29  Conn.   508), 

293,  324. 
Atwater  v.  Whiteman  (41   Fed.  R, 

427),  1843. 
Atwell  v.  Miller  (6  Md.  10),  379,  964. 
Atwood  v.  Cobb  (16  Pick.  227),  1131. 
Atwood  v.  Dearborn  (1  Allen,  483), 

923,  924. 
Atwood  v.  Lucas  (53  Me.  508),  1643, 

1665,  1690. 
Aubert  v.  Maze  (2  Bos.  &  P.  371), 

1012,  1015. 
Auerbach  v.  Wunderlich  (76  Minn. 

42),  1380. 
Augur  v.  Couture  (68  Me.  427).  451. 
Augusta  Southern  R.  Co.  v.  Smith 

(106  Ga.  864),  473. 
Ault  v.  Dustin  (100  Tenn.  366),  1081, 

1090,  1091. 
Aultman  &  Co.  v.  Carr  (16  Tex.  Civ. 

App.  430),  895,  905. 


lviii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Yol 

Aultman  v.  Case  (68  Wis.  612),  1817. 
Aultman  v.  Clifford  (55  Minn.  159), 

1156. 
Aultman  v.  Falkuni  (51  Minn.  562), 

1257. 
Aultman  v.  Gunderson  (6  S.  Dak. 

226),  1806,  1812. 
Aultman  v.  Hetherington  (42  Wis. 

622),  1817,  1818. 
Aultman  v.  Kennedy  (33  Minn.  339), 

1255. 
Aultman  v.  Lee  (43  Iowa,  404),  1455. 
Aultman  v.  Mallory  (5  Neb.  178),  599. 
Aultman  v.  McKenny  ( —  Tex.  Civ. 

App.  — ),  1384,  1396. 
Aultman  v.  Olson  (43  Minn.  409),  620, 

837. 
Aultman  v.  Shelton  (90  Iowa,  288), 

1240. 
Aultman  v.  Silha  (85  Wis.  359),  564, 

578. 
Aultman  v.  Theirer  (34  Iowa,  272),  660, 

1395,  1396. 
Aultman  v.  Weber  (28  111.  App.  91), 

1259. 
Aultman  v.  Wykle  (36  111.  App.  293), 

669. 
Aultman  Taylor  Co.  v.  Ridenour  (96 

Iowa,  638),  1078,  1251,  1353,  1384. 
Au  Sable  Boom  Co.  v.  Sanborn  (36 

Mich.  358),  1423. 
Austen  v.  Craven  (4  Taunt,  644),  702. 

711. 
Austin  v.  Charlestown  Seminary  (8 

Met.  19G),  97. 
Austin  v.  Davis  (128  Ind.  472),  428. 
Austin  v.  Dye  (46  N.  Y.  500),  5!)!). 
Austin  v.  Nickerson  (21     Wis.    ",l!i!, 

L235. 
Austrian  v.  Springer  (94  Midi.   B43), 

1736,  1753. 
Averill  v.  Hedge  (12  Conn.  424),  245, 

247,251. 
Avery  v.  Bowden  (5  El.  &  Bl.  711), 

loss.  L089,  10H7. 
Avery  v.  Chapman  (62  fowa,  111,  875. 


I,  §§  1-797;  Vol.  n,  §§  79SH850. 

Avery  v.  Ryan  (74  Wis.  591),  1727. 
Avery  v.  Willson  (81  N.  Y.  341),  242, 

831, 1076, 1160, 1161, 1162, 1390, 1400, 

1846. 
Avers  v.  Burns  (87  Ind.  245),  123,  131. 
Aymar  v.  Beers  (7  Cow.  705),  1132. 
Ayres  v.  French  (41  Conn.  142),  901. 
Ayres  v.  Parks  (3  Hawks,  59),  1237. 
Ayliff  v.  Archdale  (Cro.  Eliz.  920), 

124. 
Azemar  v.  Casella  (L.  R.  2  C.  P.  431), 

1333. 
Baals  v.  Stewart  (109  Ind.  371),  599. 
Babb  v.  Clemson  (10  S.  &  R.  419),  580, 

960,  966. 
Babcock  v.  Bonnell  (80  N.  Y.  244), 

1523, 1612. 
Babcock  v.  Case  (61  Pa,  St.  427),  914. 
Babcock   v.   Def'ord   (14    Kan.   408), 

175. 
Babcock  v.  Lawson  (L.  R.  4  Q.  B.  Div. 

394),  924. 
Bach  v.  Levy  (101  N.  Y.  511),  1212, 

1818. 
Babcock  v.  Trice  (18  III  420),  1340, 

1393,  1395,  1844. 
Bach  v.  Owen  (5  T.  R.  409),  404. 
Bacharach  v.  Chester  Frt.  Line  (133 

Pa.  St.  414),  1181. 
Bachentoss  v.  Speicher  (31   Pa.  St. 

324),  904. 
Backman  v.  Mussey  (31  Vt.  547).  1028. 
Backman  v.  Wright  (27  Vt.  187),  1028. 
Bacon  v.  Brown  (4  Bibb,  91),  910. 
Bacon  v.  Cobb  (45  111.  47),  1103,  1124, 

1151. 
Bacon  v.  Eccles  (43  Wis.  227),  367,  463, 

464. 
Badger  v.  Phinney  (15  Mass.  359),  109, 

120. 
Badlam  v.  Tucker  (1  Pick.  389),  380, 

1201. 
Bagby  v.  State  (82  Ga.  786),  1029. 
Bagby  v.  Walker  (78  Md.  239),  323. 
Baglehole  v.  Walters  (3  Camp.  151), 

809.  933. 


TABLE    OF    CASES    CITED. 


lix 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Barley  v.  Findlay  (82  111.  524),  1618, 

1629,  1611,  1643,  1682. 
Bagley  v.  Rolling  Mills  Co.  (21  Fed. 

R.  159),  1156,  1237,  1240,  1335,  1393, 

1844. 
Bagueley  v.  Hawley  (L.  R,  2  C.  P. 

625),  1309. 
Bahia  &  S.  F.  Ry.  Co.,  In  re  (L.  R  3 

Q.  B.  584),  845. 
Bailey  v.  Austrian  (19  Minn.  545),  263. 
Bailey  v.  Colby  (34  N.  H.  29),  588,  628. 
Bailey  v.  Day  (26  Me.  88),  1419. 
Bailey  v.  De  Crespigny  (L.  R.  4  Q.  B. 

180),  1099. 
Bailey  v.  Forrest  (2  C.  &  K.  131),  1270. 
Bailey  v.  Foster  (9  Pick.  139),  836. 
Bailey  v.  Harris  (8  Iowa,  331),  599. 
Bailey  v.  Hervey  (135  Mass.  172),  583, 

619. 
Bailey  v.  Kennedy  (2  Del.  Ch.  12),  955. 
Bailey  v.  Long  (24  Kan.  90),  711. 
Bailey  v.  Merrell  (3  Bulst.  94),  884. 
Bailey  v.  Miltenberger  (31  Pa.  St.  41), 

1267. 
Bailey  v.  Mogg  (4  Denio,  60),  1048. 
Bailey  v.  Nickols  (2  Root,  407),  1319. 
Bailey  v.  Ogden  (3  Johns.  399),  358, 
m  434. 
Bailey  v.  Railroad  Co.  (49  N.  Y.  70), 

736,  752. 
Bailey  v.  Smith  (43  N.  H.  141),  493, 

499,  714. 
Bailey  v.  Sweeting  (9  C.  B.,  N.  S.,  843), 

428. 
Bainbridge  v.  Caldwell  (4  Dana,  213), 

542,  546,  554. 
Bainbridge  v.  Pickering  (2  W.  Black. 

1325),  127,  429. 
Baines  v.  Jevons  (7  C.  &  P.  288),  360. 
Baird  v.  Hall  (67  N.  C.  230),  1455. 
Baird  v.  Matthews  (6  Dana,  129),  1242, 

1268. 
Baird  v.  Randall  (58  Mich.  175),  1456. 
Baker  v.  Arnot  (67  N.  Y.  448),  1303. 
Baker  v.  Born  (67  Ind.  App.  422),  15. 
Baker  v.  Carter  (83  Me.  132),  183. 


Baker  v.  Chicago,  etc.  R.  Co.  (98  Iowa, 

438),  779. 
Baker  v.  Crandall  (78  Mo.  584),  878. 
Baker  v.  Dening  (8  A.  &  E.  94),  451. 
Baker  v.  Drake  (53  N.  Y.  211),  1787. 
Baker  v.  Drake  (66  N.  Y.  518),  1787. 
Baker  v.  Gray  (17  C.  B.  462),  599. 
Baker  v.  Hall  (15  Iowa,  277),  202. 
Baker  v.  Henderson    (24    Wis.    509), 

1242,  1389. 
Baker  v.  Higgins  (21  N.  Y.  397),  513, 

1162. 
Baker  v.  Holt  (56  Wis.  100),  227,  229. 
Baker  v.  Johnson  (37  Iowa,  186),  233. 
Baker  v.  Kennett  (54  Mo.  82),  105, 109, 

121. 
Baker  v.  Robbins  (2  Denio,  136),  915. 
Baker  v.  Taylor  (54  Minn.  71),  156. 
Baker  v.  Todd  (6  Tex.  273),  1442. 
Baker  v.  Woodruff  (2  Barb.  523),  22. 
Balderston  v.  Rubber  Co.  (18  R.  1. 338), 

47,  49. 
Baldey  v.  Parker  (2  B.  &  C.  37),  307, 

349,  386. 
Baldwin  v.  Crow  (86  Ky.  679),  578. 
Baldwin  v.  Doubleday  (59  Vt.  7),  527, 

529. 
Baldwin  v.  Farnsworth  (10  Me.  414), 

1389. 
Baldwin  v.  Hill   (4  Kan.   App.   168), 

649. 
Baldwin  v.  McKay  (41  Miss.  358),  714. 
Baldwin  v.  Van  Deusen  (37  N.  Y.  487), 

1259,  1260. 
Baldwin  v.  Van  Wagner  (33  W.  Va. 

293,  603. 
Baldwin  v.  Williams  (3  Mete.  365), 

331. 
Baldwin  v.  Young  (47  La.  Ann.  1466), 

647. 
Ballantyne  v.  Appleton  (82  Me.  570), 

524,  534,  556. 
Ballard  v.  Burgett  (40  N.  Y.  314),  599. 
Ballard  v.  Winter  (25  Vt.  581),  649. 
Ballentine    v.  Robinson  (46  Pa.  St. 

177),  754,  1696. 


lx 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Ballou  v.    Billings    (136  Mass.  307), 

1087,  1089.     - 
Balte  v.   Bedemiller  (—  Oreg.  — ), 

1798. 
Baltimore  &  Ohio  R.  Co.  v.  Brydon 

(65  Md.  198),  668,  672,  673. 
Bamberger  v.  Schoolfield  (160  U.  S. 

149).  955. 
Banchor  v.  Mansel  (47  Me.  58),  1013, 

1019,  1027,  1048. 
Bancroft   v.  Blizzard  (13  Ohio,  30), 

928. 
Bancroft  v.  San  Francisco  Tool  Co. 

(120  CaL  228),  1349. 
Bancroft  v.  Scribner  (44  U.  S.  App. 

480),  175. 
Bangor  Electric  Co.  v.  Robinson  (52 

Fed.  R.  520),  162. 
Bangs  v.   Hornick  (30  Fed.  R.  97), 

1031,  1032. 
Banker  v.  Banker  (63  N.  Y.  409),  69. 
Bank  of  Atchison  v.  Byers  (139  Mo. 

627),  875,  1840. 
Bank  of  Beloit  v.  Beale  (34  N.  Y.  473), 

908,  909. 
Bank  of  Huntington  v.  Napier  (41 

W.  Va.  481),  1198. 
Bank  of  Little  Rock  v.  Frank  (63 

Ark.  16),  909. 
Bank   of  Montgomery  v.   Reese    (2 

Casey,  143),  1743. 
Bank  of  Newport  v.  Hirsch  (59  Ark. 

225),  16G. 
Bank  of  Rochester  v.  Jones  (4  N.  Y. 

497),  780,  788,  792,  1506. 
Bank  of  St.  Albans  v.  Farmers'  Bank 

(10  Vt.  141),  1303. 
Bank  v.  Cummings  (89   Tenn.   609), 

774. 
Bank  v.  Curren  (36  Iowa,  555),  1027. 
Bank  v.  Danforth  (14  Gray,  123),  049. 
Bank  v.  Gifford  (79  Iowa,  300).  1423. 
Banks  v.  Everest  (35  Kan.  687),  175. 
Banner,  Ex  parte  (2Ch.  Div.  278>,787. 
Bannerman  v.  White  (10  C.  B.,  N.  S., 
844),  861,  863,  1225,  1333. 


Bannon   v.  Aultman  (80  Wis.  307). 

1286,  1385. 
Baptist  Church  v.  Bigelow  (16  Wend. 

28),  426. 
Barber  v.  Meyerstein  (L.  R.  4  H.  L. 

317),  166. 
Barclay  v.  Smith  (107  111.  349),  197. 
Barclay  v.  Tracy  (5  Watts  &  Serg. 

45),  349. 
Barden  v.  Montana  Club  (10  Mont. 

330), . 

Baring  v.  Corrie  (2  B.  &  Aid.  137), 

1451,  1452. 
Barker  v.  Dinsmore  (72  Pa.  St.  427), 

149.  269,  887. 
Barker  v.  Freeland  (91   Tenn.   112), 

499. 
Barker  v.  Hibbard  (54  N.  H.  539),  132. 
Barker  v.  Keown  (67  111.   App.  433), 

887. 
Barker  v.  Mann  (5  Bush,  672),  1742, 

1755,  1762,  1763. 
Barker  v.  Turnbull  (51  111.  App.  226), 

1391. 
Barker  v.  Walbridge  (14  Minn.  469), 

1437. 
Barker  v.  Windle  (6  E.  &  B.  675),  861. 
Barksdale  v.  Brown  (1 N.  &  McC.  517), 

1264. 
Barlow  v.  Lambert  (28  Ala.  710),  1264. 
Barnard  v.  Backhaus  (52  Wis.  593), 

1031,  1032,  1036. 
Barnard  v.  Campbell  (55  N.  Y.  456), 

154,  156,  158,  165,  908,  923,  924. 
Barnard  v.   Crosby  (6   Allen,    327), 

1540. 
Barnard  v.  Eaton  (2  Cush.  295),  202. 
Barnard  v.  Kellogg    (10    Wall.   383), 

832,  83:3, 1264,  1311,  1320,  1322,  1323, 

1326,  1334,  1392. 
Barudt  v.  Frederick  (78  Wis.  1),  1841. 
Barnes  v.  Barnes  (6  Vt.  388),  336. 
Barnes  v.  Brown  (32  Mich.  146).  948. 
Barnes  v.  Brown  (130  N.  Y.  372).  1744. 
Barnes  v.  Burns  (81  Wis.  232),  1235. 
Barnes  v.  Hardman  (15  Tex.  366),  150. 


TABLE    OF    CASES    CITED. 


ixi 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Barnes  v.  Morse  (38  I1L  App.  274).  30. 
Barnes  v.  McCrea  (75  Iowa,  267),  29. 
Barnes  v.  Smith  (159  Mass.  344),  1031. 
Barnes  v.  Toye   (L.  R.   13  Q.  B.  Div. 

410),  127,  128,  132,  133. 
Barnes  Safe  &  Lock  Co.  v.  Block  Bros. 

Tobacco  Co.  (38  W.  Va.  158),  49. 
Barnet  v.  Smith  (30  N.  H.  256),  1433. 
Barnett  v.  Speir  (93  Ga.  762),  921. 
Barney  v.  Brown  (2  Vt.  374),  1193. 
Barney  v.  Dewey  (13  Johns.  224),  1798. 
Barney  &  Smith   Mfg.  Co.  v.  Hart 

(8  Ky.  Law  R.  223',  578. 
Barr  v.  Gibson  (3  M.  &  W.  390),  1155, 

1208. 
Barr  v.  Logan  (5  Harr.  52),  1682. 
Barr  v.  Meyers  (3  Watts  &  Serg.  295), 

1125. 
Barr  v.  Reitz  (53  Pa.  St.  256),  380, 960, 

964,  988. 
Barrett  v.  Goddard  (3  Mason,  107), 

964,  965,  1198. 
Barrett  v.  Hall  (1  Aik.  269),  1245. 
Barrett  v.  Kelley  (66  Vt.  515),  649. 
Barrett  v.  Pritchard  (2  Pick.  512),  554 
Barrett  v.  Strenton  (2  Ala.  181),  818. 
Barrett  v.  Veneer  Works  (110  Midi. 

6),  1709. 
Barrie  v.  Earle  (143  Mass.  1),  1164. 
Barrington  v.  Skinner  (117  N.  C.  47), 

603. 
Barron  v.  Alexander  (27  Mo.  530),  869, 

935. 
Barrow,  Ex  parte  (6  Ch.  Div.  783), 

1583. 
Barrow  v.  Barrow  (108  Ind.  345  >,  973. 
Barrow  v.  Paxton  (5  Johns.  258),  960. 
Barrow  v.  Window  (71  111.  214).  492, 

493. 
Barry  v.  Cavanaugh  (127  Mass.  394), 

1690. 
Bartel  v.  Brown  (104  Wis,  493),  1453. 
Bartholomew  v.   Bentley  (15   Ohio, 

659).  878. 
Bartholomew  v.  Bushnell  (20  Conn. 

271),  1810. 


Bartholomew  v.  Finnemore  (17  Barb. 

428),  109. 
Bartholomew  v.  Markwick  (15  C.  B. 

710),  1097. 
Bartlett  v.  Blake  (37  Me.  124).  960. 
Bartlett  v.  Board  of  Education  (59 

111.  364),  167. 
Bartlett  v.   Drake  (100   Mass.    174), 

118. 
Bartlett  v.  Hoppock  (34  N.  Y.  118), 

1242,  1311,  1314,  1349. 
Bartlett  v.  Jewett  (98  Ind.  206),  749, 

1183. 
Bartlett  v.  Smith  (4  McCrary,  388), 

1031. 
Bartlett  v.  Williams  (1  Pick.   288), 

963. 
Barton  v.  Faherty  (3  G.  Greene,  327), 

1302. 
Barton  v.  Hunter  (59  Mo.  App.  610), 

1433. 
Barton  v.  Kane  (17  Wis.  37),  746, 1158, 

1392. 
Barton  v.  McKelway  (22  N.  J.  L.  165), 

1128,  1139,  1188. 
Bartram  v.  Farebrother  (4  Bing.  579), 

1577.  1591. 
Bar  wick  v.  Buba  (2  C.  B.  563),  1089. 
Bascom  v.  Danville  Stove  Co.  (182 

Pa  St.  427),  1402. 
Bass  v.  Pease  (79  111.  App.  308),  964. 
Bass  v.  Walsh  (39  Mo.  192),  380.  527. 
Bassett  v.  Brown  (105  Mass.  551),  915, 

916,  917. 
Bassett  v.  Camp  (54  Vt.  232),  1193. 
Bassett  v.  Collis  (2  Camp.  523),  1270. 
Bassett  v.  Lockard  (60  111.  164),  1307. 
Bassett  v.  McKenna  (52  Conn.  437), 

973. 
Bassinger  v.  Spangler  (9  Colo.  175), 

964. 
Bastress  v.  Chickering  (18  111.  App. 

198),  50. 
Batchelder,  In  re  (2  Low.  245),  1493, 

1514. 
Batchelder  v.  Carter  (2  Vt  168),  960. 


lxii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol  H,  §§  7PR-1850. 


Batchelder  v.  Queen     Ins.    Co.    (135 

Mass.  449),  812. 
Batchelder  v.  Sanborn  (66  N.  H.  192), 

599,  603,  604. 
Batchelder  v.  White  (80  Va.  103),  953. 
Batsman  v.  Robinson  (12  Neb.  508), 

999. 
Bates  v.  Ball  (72  111.  108),  86. 
Bates  v.  Chesebro    (32   Wis.   594,  36 

Wis.  636),  419. 
Bates  v.  C  mkling  (10  Wend.  389),  502. 
Bates  v.  Coster  (1  Hun,  400),  305. 
Bates  v.  Elmer    Glass  Mfg.   Co.   (— 

N.  J.  Eq.  — ),  492. 
Bates  v.  Smith  (83  Mich.  347),  199, 200. 
Bates  v.  Stansell  (19  Mich.  91),  1787. 
Bauendahl  v.  Horr  (7  Blatchf.  548), 

554,  633. 
Baughman  v.  Gould  (45  Mich.  481), 

863,  875. 
Baum  v.  Stevens  (2  Ired.  411),  862, 

1229,  1240. 
Bauman  v.  James  (3  Ch.  508),  426. 
Baumbach  Co.  v.  Gessler  (79  Wis. 

567).  1344 
Baxendale  v.  London,  etc.  Ry.  Co. 

(L.  R.  10  Ex.  35),  1769. 
Baxter  v.  Earl  of  Portsmouth  (2  C.  & 

P.  178),  84. 
Baxter  v.  Sherman  (73  Minn.  434),268. 
Bayley  v.  Taber  (5  Mass.  286),  1057. 
Baylis  v.  Davis  (47  Iowa,  340),  49. 
Baylis  v.  Dinely  (3  M.  &  Sel.  447),  124. 
Bayliss  v.  Hennessey  (54  Iowa,   11), 

1384. 
Bayly  v.  Schofield  (1  M.  &  Sel.  338), 

1540. 
Bayonne  Knife  Co.  v.  Umbenhauer 

(107  Ala.  496),  1539, 1571. 
Bazeley  v.  Forder  (L.  R.  3  Q.  B.  559), 

186. 
Beach's  Appeal  (58  Conn.  464),  588, 

590,  614,  619,  620,  625. 
Beach  v.  Boynton  (26  Vt.  725),  970. 
Beadles  v.   McElrath  (85  Ky.   231), 

1031. 


Beadles  v.  Ownby  (16  Lea.  424),  1031. 
Beall  v.  McGehee  (57  Ala.  438),  872. 
Beals  v.  Guernsey  (8  Johns.  446),  960. 
Beals  v.  Olmstead  (24  Vt.  114),  1237, 

1344. 
Beals  v.  See  (10  Pa.  St.  56),  74. 
Beam  v.   Blanton  (3  Ired.   Eq.  59), 

1482. 
Bean  v.  Burbank  (16  Me.  458),  263. 
Bean  v.  Smith  (2  Mass.  252),  978. 
Beardsley  v.  Beardsley  (138  U.  S.  262), 

564,  577. 
Beardsley  v.  Hotchkiss  (26  N.  Y.  207), 

107. 
Beardsley  v.  Smith  (61  111.  App.  340), 

210,  1702. 
Beams,  In  re  (2  Fed.  Cas.  1190),  1586. 
Beasley  v.  Beasley  (180  111.  163),  83. 
Beasley  v.  Bray  (98  N.  C.  266),  952. 
Beasley  v.  Huyett  &  Smith  Mfg.  Co. 

(92  Ga.  273),  935,  1396. 
Beauchamp  v.  Archer  (58  Cal.  431). 

1084. 
Beaumont  v.  Brengeri  (5  Com.  B.  301), 

361,  385. 
Beaumont  v.  Crane  (14  Mass.  400), 

988. 
Beaupre  v.  Telegraph  Co.  (21  Minn. 

155),  224 
Beaver  v.  Beaver  (117  N.  Y.  421),  12. 
Beavers  v.  Lane  (6  Duer,  238),  891. 
Becherer  v.  Asher  (23  Ont.  App.  202), 

188. 
Beck  v.  Blue  (42  Ala.  32),  689,  690. 
Beck  v.  Sheldon  (48  N.  Y.  365),  1395. 
Becker  v.  Hallgarten  (86  N.  Y.  107), 

1559,  1563. 
Becker  v.  Holm  (89  Wis.  86),  373. 
Becker  v.  Smith  (59  Pa.  St.  469),  32, 

580. 
Beck  with  v.  Burrough  (14  R,  L  366), 

945. 
Beckwith  v.  Cheever  (21  N.  H.  41), 

229,  214. 
Beckwith  v.  Farnum  (5  R.  I.  230), 

1430. 


TABLE    OF    CASES    CITED. 


lxiii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Beokwith  v.  Talbot  (2  Colo.  639),  428. 
Bedell  v.  Kowalsky  (99  Cal.  236),  1158, 

1374. 
Bedell  v.  Wilder  (65  Vt.  406),  277. 
Bedford  v.  Hunt  (1  Mason,  303),  834 
Bedford  v.  Penny  (58  Mich.  424),  953. 
Bedinger  v.  Wharton  (27  Gratt.  827), 

109. 
Bedsworth  v.  Bowman  (104  Mo. -44), 

139. 
Beebe  v.  Hatfield  (67  Mo.  App.  609), 

902. 
Beebe  v.  Knapp  (28  Mich.  53),  863,  875. 
Beebe  v.  Robert  (12  Wend.  413),  1320. 
Beecher  v.  Mayall  (16  Gray,  376),  964. 
Beeckman  v.  Montgomery  (14  N.  J. 

Eq.  106),  973. 
Beede  v.  Lamprey  (64  N.  H.  510),  1786. 
Beeler  v.  Young  (1  Bibb,  519),  123, 

124,  131,  132. 
Beeman  v.  Banta  (118  N.   Y.    538), 

1822. 
Beeman  v.  Buck  (3  Vt.  53),  1237, 1810. 
Beeman  v.  Lawton  (37  Me.  543),  39. 
Beer  v.  Walker  (46  L.  J.  C.  P.  677), 

1265,  1298,  1358. 
Beers  v.  Crowell  (Dud.  28),  331. 
Beers  v.  Williams  (16  I1L  69),  1344. 
Beesley  v.  Hamilton  (50  111.  88),  878. 
Beetle  v.  Anderson  (98  Wis.  5),  875, 

878,  892, 932. 
Beggs  v.  Bart-els  ( —  Conn.  — ),  650. 
Begley  v.  Morgan  (15  La.  162),  380. 
Behn  v.  Burness  (1  B.  &  S.  877),  861. 
Behn  v.  Burness  (3  B.  &  S.  751),  1075, 

1145. 
Beh  rends  v.  Beyschlag  (50  Neb.  304), 

1408. 
Behrens  v.  McKenzie  (23  Iowa,  333), 

73,74. 
Beidler  v.  Crane  (135  111.  92),  952, 978. 
Beirne  v.  Dord  (5  N.  Y.  95),  1212, 1320, 

1322,  1325,  1326. 
Beirne  v.  Dunlap  (8  Leigh,  514),  16. 
Belcher  v.  Costello  (122  Mass.   189), 

937. 


Belcher  v.  Sellards  (19  Ky.  L.  157), 

1374,  1389. 
Belding  v.  Frankland  (8  Lea,  67),  901, 

903,  924. 
Belfast,  etc.  Ry.  Co.  v.  Unity  (62  Me. 

148),  233. 
Belfield  v.  National  Supply  Co.  (189 

Pa.  St.  189),  268. 
Belknap  v.  Bender  (75  N.  Y.  446),  1070. 
Bell  v.  Campbell  (123  Mo.  1)    1000. 
Bell  v.  Ellis  (33  Cal.  620),  906. 
Bell  v.  Hoffman  (92  N.  C.  273),  1083. 
Bell  v.  Moss  (5  Whart.  189),  1537. 
Bell  v.  McCloskey  (155  Pa   St.  319), 

964. 
Bell  v.  Offut  (10  Bush.  632),  1643. 
Bell  v.  Reynolds  (78  Ala.  511),  1763, 

1774,  1824. 
Bellas  v.  Hays  (5  S.  &  R.  427),  834. 
Bellefontaine  v.  Vassaux  (55  Ohio  St. 

323),  774,  777,  779. 
Belleville  Pump  Works  v.  Samuel- 
son  (16  Utah.  234),  895,  897,  921. 
Bellows  v.  Wells  (36  Vt.  599),  964, 
Belote  v.  Morrison  (8  Minn.  62),  40. 
Belser  v.  Tuscumbia    Banking    Co. 

(105  Ala.  514),  138. 
Belshaw  v.  Bush  (11  C.  B.  191),  1466. 
Bement  v.  Smith  (15  Wend.  493),  754,- 

1187. 
Bemis  v.  Leonard  (118  Mass.  502),  1136. 
Benedict  v.  Bachelder  (24  Mich.  425), 

1057. 
Benedict  v.  Field  (4  DuQr,  154),  052. 
Benedict  v.  Field  (16  N.  Y.  595),  1430. 
Benedict,  etc.  Mfg.  Co.  v.  Jones  (64 

Mo.  App.  218),  485,  492. 
Benedict   v.  Schaettle  (12   Ohio  St. 

515),  1540,  1542,  1543. 
Benford  v.  Schell  (55  Pa.  St.  393),  380, 

964. 
Benham  v.  Bishop  (19  Conn.  330),  121. 
Beninger  v.  Corwin  (24  N.  J.  L.  257), 

869. 
Benjamin  v.  Benjamin  (15  Conn.  347), 

178. 


lxiv 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Benjamin  v.  Madden  (94  Va.  66),  965. 
Benner  v.  Puffer  (114  Mass.  376),  564, 

583,  599. 
Bennett  v.  Brumfitt  (L.  R.  3  C.  P.  28), 

451. 
Bennett  v.  Buchan  (76  N.  Y.  386),  1272. 
Bennett  v.  Collins  (52  Conn.  1),  121. 
Bennett  v.  Gibbons  (55  Conn.  450), 

879. 
Bennett  v.  Gillette  (3  Minn.  423),  189. 
Bennett  v.  Hull  (10  Johns.  364),  328. 
Bennett  v.  McLaughlin  (13  111.  App. 

349),  120. 
Bennett  v.  O'Fallon  (2  Mo.  69),  184. 
Bennett  v.  Scutt  (18  Barb.  347),  336. 
Bensley  v.  Bignold  (5  B.  &  Aid.  335), 

1045. 
Bent  v.  Cobb  (9  Gray,  397),  461,  462. 
Bent  v.  Hoxie  (90  Wis.  625),  603. 
Bent  v.  Manning  (10  Vt.  225),  131. 
Bentall  v.  Burn  (3  B.  &  C.  423),  387, 

524,  964,  1133,  1493. 
Benton  v.  Fay  (64  111.  417),  1790, 1792. 
Benton  v.  Snyder  (22  Minn.  247),  960. 
Bergan  v.  Magnus  (98  Ga.  514),  543. 
Bergeman  v.  Railroad  Co.  (104  Mo. 

77),  774,  779. 
Berger  v.  State  (50  Ark.  20),  741,  774, 

777. 
Bergh  v.  Warner  (47  Minn.  250),  183. 
Berkey  &  Gay  Furn.  Co.  v.  Hascall 

(123  Ind.  502),  1774,  1792. 
Berkshire  Glass  Co.   v.  Walcott  (2 

Allen,  227),  1411. 
Berkson   v.  Heldman  (58  Neb.  595), 

898. 
Bernard  v.  Taylor  (23  Oreg.  416),  999, 

1030. 
Berndtson  v.  Strang  (L.  R.  4  Eq.  481), 

1547,  1548,  1561. 
Bernhardt  v.  Walls  (20  Mo.  App.  206), 

331. 
Bernshouse    v.   Abbott  (16  Vroom, 

531),  1447,  1451. 
Berolles  v.  Ramsay  (Holt,  N.  P.  77), 

132. 


Berry  v.  En  sell  (2  Gratt.  333),  963. 
Berry   v.   Griffin  (10  Md.   27),   1423, 

1425. 
Berry  v.  Insurance  Co.  (132  N.  Y.  49), 

914 
Berry  v.  Monroe  (57  Mich.  187),  39. 
Berry  v.  Nail  (54  Ala.  446),  1137. 
Berry  v.  Shannon  (98  Ga.  459),  1817, 

1821. 
Bertelson  v.  Bower  (81  Ind.  512),  492, 

714. 
Berthold    v.    Seevers    Mfg.   Co.   (89 

Iowa,  506),  1350,  1380. 
Bertoli  v.  Smith  (69  Vt.  425),  1451, 

1452. 
Best  v.   Bander  (29  How.   Pr.  489), 

1051. 
Best  v.  Flint  (58  Vt.  543),  1214,  1335, 

1340,  1344,  1393,  1395,  1811. 
Best  v.  Osborne  (Ryan  &  Moo.  290), 

1270. 
Bestor  v.  Hickey  (71  Conn.  181),  1032. 
Bethell  v.  Clark  (20  Q.  B.  Div.  615), 

1576. 
Bethel  Steam  Mill  Co.  v.  Brown  (57 

Me.  9),  488,  528,  964,  1197. 
Bettini  v.   Gye   (1   Q.   B.   Div.    183), 

1065. 
Betts  v.  Lee  (5  Johns.  348),  639. 
Beurmann  v.  Van  Buren  (44  Mich. 

496),  909,  952. 
Beverly  v.  Lincoln  Gas  Co.  (6  A.  &  E. 

829).  682,  1370. 
Bianchi  v.  Nash  (1  M.  &  W.  545),  682, 

1370. 
Bibb  v.   Allen   (149  U.  S.  481),  434, 

1031, 1039. 
Bibb  v.  Freeman  (59  Ala.  612),  970, 

971. 
Bibb  v.  Snodgrass  (97  Ala.  459),  1433. 
Bickel  v.  Sheets  (24  Ind.  1),  1013, 1023. 
Bickford  v.  First  Nat.  Bank  (42  111. 

238).  1434. 
Bickley  v.  Keenan  (60  Ala.  293),  451. 
Bicknall  v.  Waterman  (5  R.  I.  43), 

1430. 


TABLE    OF    CASKS    CITED. 


lxv 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  708-1850. 


Bidault  v.  Wales  (20  Mo.  546),  902, 

924. 
Biddinger  v.  Wiland   (67   Md.  339), 

953. 
Biederman  v.  O'Connor  (117  I1L  493), 

100. 
Bierce  v.  Stocking  (11  Gray,  174),  834. 
Bierman  v.  City  Mill  Co.  (151  N.  Y. 

482),  1281,  1346. 
Bigelow  v.  Benedict  (70  N.  Y.  202), 

203,  1031,  1032. 
Bigelow  v.  Kinney  (3  Vt.  353).  95, 100. 
Bigelow  v.  Legg  (102  N.  Y.  652),  1690. 
Bigelow  v.  Walker  (24  Vt,  149),  175. 
Bigg  v.  Whisking  (14  C.  B.  195),  349. 
Bigge  v.  Parkinson  (7  H.  &  N.  955), 

1261,  1340,  1342, 
Bigley  v.  Risher  (63  Pa.  St.  152),  205. 
Biggs  v.  Barry  (2  Curtis,  259),  902, 906, 

1559. 
Biggs  v.  Perkins  (75  N.  C.  397),  1272. 
Bill  v.  Bament  (9  M.  &  W.  36),  424, 

1493. 
Billin  v.  Henkel  (9  Colo.  394),  365. 
Billing  v.  Pilcher  (7  B.  Mon.  458),  184. 
Billings  v.  Mason  (80  Me.  496),  1449. 
Billingslea  v.   Smith    (77   Md.   504), 

1031. 
Billingsley  v.  White  (59  Pa,  St.  464), 

964,  966. 
Bindley  v.  Martin  (28  W.  Va.  773), 

9(50. 
Bingham  v.  Vandergrift  (93  Ala.  283), 

583. 
Binkley   v.    Forkner  (117   Ind.  176), 

647. 
Binney  v.  Annan  (107  Mass.  94),  1729. 
Birch  v.  Linton  (78  Va.  584),  95. 
Birchinell   v.    Hirsch   (5   Colo.  App. 

500),  906. 
Bird  v.  Boulter  (4  B.  &  Ad.  443),  462. 
Bird  v.  Brown  (4  Exch.  786),  1537, 
Bird  v.  Decker  (64  Mo.  550),  451. 
Bird  v.  Muhlinbrink    (1    Rich.    199), 

322.  324 
Bird  v.  Munroe  (66  Me.  337),  424. 


Honey  (34  Tex.  245),  1013, 
Minderhout  ( —  Ala.  — ), 


Bird  Co.  v.  Hurley  (87  Me.  579),  138. 
Birge  v.  Edgerton  (28  Vt,  291),  964. 
Birks  v.  French  (21  Kan.  238),  1052. 
Bisbee  v.  McAllen  (39  Minn.  143),  1045, 

1046,  1050. 
Bish  v.  Beatty  (111  Ind.  403),  937. 
Bishop 

1022. 
Bishop 

634. 
Bishop  v.   Rutledge  (7  J.  J.  Marsh. 

217),  692. 
Bishop  v.  Small  (63  Me.  12),  937. 
Bishop  v.  Stewart  (13  Nev.  25),  914. 
Bishop  v.  Weber  (139  Mass.  41 1),  878. 
Bissell  v.  Balcom  (39  N.  Y.  275),  420. 
Bissell  v.  Hopkins  (3  Cow.  166),  980. 
Bissell  v.  Terry  (69  111.  184),  257. 
Black  v.  Del  bridge,  etc.  Co.  (90  Mich. 

56),  1377. 
Black  v.  Nease  (37  Pa.  St.  433),  973. 
Black  v.  Wabash  Ry.  Co.  (Ill  111.  351), 

266. 
Black  v.  Webb  (20  Ohio,  304),  41,  634. 
Black  River  Lumber  Co.  v.  Warner 

(93  Mo.  374),  1676,  1694,  1696,  1702. 
Blackburn  v.  Reilly  (47  N.  J.  L.  290), 

114a 

Blackett  v.  Royal  Exch.  Assur.  Co. 

(2  Cr.  &  J.  249),  1264. 
Blackford  v.  Christian  (1  Knapp.  77), 

65. 
Blackman  v.  Pierce  (23  Cal.  508),  1579. 
Blackiner  v.  Stone  (51  Ark.  489).  1729. 
Blackmore  v.  Fairbank  (79  Iowa,  288), 

1242,  1258,  1260,  1344. 
Blacknall  v.  Rowland  (118  N.  C.  418), 

1801. 
Blackshear  v.  Burke  (74  Ala.  239), 

1482. 
Blackwood  v.  Packing  Co.  (76  Cal. 

212),  6,  519,  520,  1340. 
Blair  v.  Smith  (114  Ind.  114),  950. 
Blair  v.  Wilson  (28  Gratt.  165  ,  1435. 
Blake  v.  Blackley  (109  N.  C.  257).  901. 
Blake  v.  Graves  (18  Iowa,  312),  963. 


lxvi 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Blakely  v.  Blakely  (33  N.  J.  Eq.  502), 

83. 
Blakely  v.  Patrick  (67  N.  C.  40),  714 
Blakeny  v.  Goode  (30  Ohio  St.  350), 

1729. 
Blakeslee  v.  Rossman  (43  Wis.  116), 

960. 
Blanchard  v.  Child  (7  Gray,  155).  599. 
Blanchard  v.  Cooke  (144  Mass.  207), 

583,  757. 
Blasdale  v.  Babcock  (1  Johns.  517), 

1798.  1834. 
Blass  v.  Anderson  (57  Ark.  483),  1053. 
Bleakley  v.  White  (4  Paige,  654).  1466. 
Bleecker  v.  Smith  (13  Wend.  530), 

1073. 
Blenkinsop  v.  Clayton  (7  Taunt.  597), 

405. 
Bligh  v.  James  (6  Allen,  570),  1004. 
Blinn  v.  Chester  (5  Day,  359),  1420. 
Bliss  v.  Bliss  (7  Bosw.  339),  1452. 
Bliss  v.  Clark  (16  Gray,  60),  175,  941. 
Bliss  v.  Cutler  (19  Barb.  9),  1459. 
Bliss  v.  Lawrence  (58  N.  Y.  442),  200. 
Bliss  v.  Negus  (8  Mass.  46),  834. 
Bliss  Co.  v.  U.  S.  Incan.  Gas  L.  Co. 

(149  N.  Y.  300),  1123, 1124,  1130. 
Block  v.  McMurray  (56  Miss.  217),  998, 

1000,  1054. 
Block  Bros.  v.  Maas  (65  Ala.  211),  702. 
Blodget  v.  Safe  Co.  (76  Mich.  538), 

1265. 
Blood  v.  Enos  (12  Vt.  625),  804. 
Blood  v.  Wilkins  (43  Iowa,  568),  1755. 
Bloom  v.  Moy  (43  Minn.  397),  974. 
Bloom  v.  Richards  (2  Ohio  St.  387), 

1052. 
Bloomer  v.  Dau  122  Mich,  522),  1453. 
Bloomingdale  v.  Memphis,  etc.  R.  Co. 

(6  Lea,  616),  1540,  1606. 
Blowers  v.  Sturtevant  (4  Denio,  46), 

184. 
Bloxam  v.  Morley  (4  B.  &  Cr.  951), 

1513. 
Bloxam  v.  Sanders  (4  Barn.  &  C.  941), 
1119,  1129,  1513,  1515. 


Bloxsome  v.  Williams  (3  B.  &  C.  232), 

1052. 
Bloyd  v.  Pollock  (27  W.  Va.  75),  733, 

1189. 
Bluegrass  Cordage  Co.  v.  Luthy  (98 

Ky.  583),  1765,  1776. 
Blum  v.   Marks   (21    La.  Ann.   268), 

1542. 
Blumenthal  v.  Stable  (98  Iowa.  722), 

1774. 
Blumer  v.  Pollak  (18  Fla.  707),  138. 
Blunt  v.  Walker  (11  Wis.  334),  1428. 
Blydenburgh  v.  Welsh   (Bald.  331), 

208,  1129. 
Board  of  Trustees  v.  Anderson  (63 

Ind.  367),  97. 
Boardman  v.  Cutter  (128  Mass.  388), 

331. 
Boardman  v.  Keeler  (1  Aik.  158),  980. 
Boardman  v.  Sill  (1  Camp.  410),  1502. 
Boardman  v.  Spooner  (13  Allen,  353), 

365,  387,  441,  451,  964,  1254. 
Boaz  v.  Schneider  (69  Tex.  128),  519. 
Bock  v.  Healey  (8  Daly,  156),  1389. 
Bog  Lead  Co.  v.  Montague  (10  C.  B. 

481),  371,  730. 
Bogert  v.  Chrystie  (24  N.  J.  L.  57), 

1309. 
Bogy  v.  Rhodes  (4  Greene,  133),  502. 
Bohtlingk  v.  Inglis  (3  East,  381),  1526, 

1548,  1549,  1577. 
Boles  v.  Merrill  (173  Mass.  491  \  937, 

942. 
Bolin  v.  Huffnagle  (1  Rawle,  1),  1548. 
Bollinger  v.  Wilson  (76  Minn.   262), 

1028. 
Bollman  v.  Burt  (61  Md.  415),  1148. 
Bollman  v.  Lucas  (22  Neb.  796),  953. 
Bolton  v.  Railway  Co.  (L.  R.  1  Com.  PI. 

439),  1527,  1559,  1591. 
Bolton  v.  Riddle  (35  Mich.  13),  1129, 

1189. 
Bolton  Partners  v.  Lambert  (41  Ch. 

Div.  295),  1537. 
Bomberger  v.  Griener  (18  Iowa,  477), 
1396. 


TABLE    OF    CASES    CITED. 


Lxvii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol  II,  §§  79S-1850. 


Bond  v.  Bond  (7  Allen,  1),  83. 

Bond  v.  Bunting  (78  Pa.  St,  210),  9G0. 

988. 
Bond  v.  Clark  (35  Vt.  577),  1237. 
Bond  v.  Gibson  (1  Camp.  185),  145. 
Bond  v.  Green  wald  (4  Heisk.  453),  512. 
Bond  v.   McMahon    (94   Mich.    557), 

1426. 
Bonesteel  v.  Flack  (41  Barb.  435  .  597. 
Bongard  v.  Block  (81  111.  186),  970. 
Bonham  Cotton  Comp.  Co.  v.  McKel- 

lar  (86  Tex.  694),  1384. 
Bonner  v.  Marsh  (10  Sm.  &  M.  376), 

736,  752,  1173. 
Bonewell  v.  Jenkins  (8  Ch.  D.  70), 

235. 
Boody  v.  McKenney  (23  Me.  525),  107, 

109,  118,  121. 
Booker  v.  Jones  (55  Ala,  266),  203. 
Bool  v.  Mix  (17  Wend.  119),  95,  106, 

107. 
Boone  v.  Eyre  (1  H.  Bl.  273),  861. 
Boorman  v.  Jenkins  (12  Wend.  566), 

1320,  1322,  1325,  1326,  1836. 
Booth  v.  Hodgson  (6  T.  R,  405),  1012, 

1015. 
Booth  v.  Rolling  Mill  Co.  (60  N.  Y. 

487),   1103,   1138,    1766,   1770,    1791, 

1831,  1833. 
Booth  v.  Smith  (3  Wend.  66),  1420. 
Boothby  v.  Plaisted  (51  N.    H.  436), 

671,  730,  731,  739,  1028,  1320. 
Boothby  v.  Scales  (27  Wis.  626),  816, 

818. 1155, 1208, 1240, 1280, 1281, 1285, 

1805. 
Borden  v.  Croak  (131  111.  68),  202. 
Bordwell  v.   Collie  (45  N.   Y.    494), 

1796. 
Borland  v.  Guffy  (1  Grant's  Cas.  394), 

232. 
Borland  v.  Nevada  Bank  (99  Cal.  89), 

204. 
Born  v.  First  Nat.  Bank  (123  Ind  178), 

1434. 
Born  v.  Shaw  (29  Pa.  St.  288),  649,  960, 

964. 


Borrekins  v.   Bevan  (3  Rawle,   23), 

1334,  1393. 
Borries   v.  Imperial  Bank  (L.   R,   9 

Com.  P.  38),  1451. 
Borries  v.  Hutchinson  (18  C.  B.,  N.  S., 

445),  1770. 
Borrowscale  v.  Bosworth  (99  Mass. 

378),  373. 
Borthwick   v.  Young  (12  Out.  App. 

671),  1322. 
Bosshardt  &  Wilson  Co.  v.  Crescent 

Oil  Co.  (171   Pa.  St.  109),  142,  239, 

252,  253. 
Bostock  v.  Jardine  (3  Hurl.  &  Colt, 

700),  1158. 
Boston  Ice  Co.  v.  Potter  (123  Mass. 

38),  267,  268. 
Boston,  etc.  R.  R.  Co.  v.  Bartlett  (3 

Cush.  224),  244. 
Boston  &  Albany  R,  R.  Co.  v.  Rich- 
ardson (135  Mass.  473»,  1302. 
Bust  wick  v.  Leach  (3  Day,  470),  331, 

337. 
Boswell  v.  Green  (1  Dutch.  390),  206, 

499,  527. 
Bothwell  v.  Farwell  (74  Iowa,  324), 

1265. 
Bottenberg  v.  Nixon  (97  Ind.  100),  25. 
Bouchell  v.  Clary  (3  Brev.  194),  122, 

124. 
Boulter  v.  Arnott  (1  C.  &  M.  333), 

1485. 
Boulton  v.  Jones  (2  Hurl.  &  Nor.  564), 

207. 
Bourn  v.  Davis  (76  Me.  223),  937. 
Bourne  v.  Seymour  (16  Com.  B.  337), 

1169. 
Boutelle  v.  Melendy  (19  N.  H.  196), 

in.")  7. 
Bowdell  v.   Parsons   (10   East,  359), 

1097. 
Bowditch  v.  New  England  Life  Ins. 

Co.  (141  Mass.  292),  1045,  1046. 
Bowen  v.  Burk  (13  Pa.  St.  146),  549. 
Bowen  v.  Frick  (75  Ga.  786),  619. 
Bowen  v.  Hoskins  (45  Miss.  183),  971. 


lxviii 


TABLE    OF   CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-79;;  Vol  II,  §§  798-1850. 


Bowen  v.  Lansing  Wagon  Works  (91 

Tex.  385),  603. 
Bowen  v.  McCarthy  (85  Mich.  26),  228, 

234. 
Bowen  v.  Sullivan  (62  Ind.  287),  273, 

274. 
Bowers  v.  Bowers  (95  Pa.  St.  477),  336. 
Bowersox's  Appeal  (100  Pa.  St.  434), 

1540. 
Bowery  Nat.  Bank  v.  Wilson  (122  N. 

Y.  478),  200. 
Bowes  v.  Shand  (2  App.  Cas.  455),  653, 

1138,  1139,  1145,  1155. 
Bowker  v.  Bradford  (140  Mass.  521), 

138. 
Bowker  v.  Hoyt  (18  Pick.  555),  1161, 

1162. 
Bowlby  v.  Bell  (3  C.  B.  284),  329. 
Bowman  v.  Carithers  (40  Ind.  90  >,  879. 
Bowman   v.   Clemmer  (50   Ind.    10), 

1265,  1271. 
Bowman  v.  Conn  (8  Ind.  58),  345, 352. 
Bowman  v.  Taylor  (2  Ad.  &  El.  278), 

834. 
Bowman  Distilling  Co.  v.  Nutt   (34 

Kan.  724),  1027. 
Bowry  v.  Bennet  (1  Camp.  348),  1012, 

1020. 
Bowser  v.  Birdsell  (49  Mich.  5),  1673. 
Box  v.  Insurance  Co.  (15  Grant's  Ch. 

337),  714. 
Boyce  v.  Smith  (9  Gratt.  704),  61. 
Boyd  v.  Anderson  (1  Overt.  438),  1303. 
Boyd  v.  De  la  Montagnie  (73  N.  Y. 

498),  948. 
Boyd  v.  Dun  lap  (1  Johns.  Ch.  478),  957. 
Boyd  v.  Eaton  (44  Me.  51),  1004. 
Boyd  v.  Gunnison  (14  W.  Va.  1),  1127, 

1129. 
Boyd  v.  Hanson  (41  Fed.  R.  174),  1031. 
Boyd  v.  Lofton  (34  Ga.  494),  627. 
Boyd  v.  Shiffer  (156  Pa.  St.  100),  892, 

905,  909. 
Boyd  v.  Wilson  (83  Pa.  St.  319),  1320. 
Boy  dell  v.  Drummond  (11  East,  142), 

426. 


Boyden  v.  Boyden  (9  Met.  519),  121. 
Boyer  v.  Berryman  (123  Ind.  451),  72, 

77. 
Boyington  v.  Sweeney  (77  Wis.  55), 

1380. 
Boyle  v.  Maroney  (73  Iowa,  70),  953. 
Boyles  v.  Overby  (11  Gratt.  202),  1817. 
Boynton  v.  Page  (13  Wend.  425),  1052. 
Boynton  v.  Veazie  (24  Me.  286 ;,  380, 

528,  964. 
Brabin  v.  Hyde  (32  N.  Y.  519),  416. 
Brackett  v.  Edgerton  (14  Minn.  174), 

1736. 
Brackett  v.  Hoyt  (29  N.  H.  264),  1047. 
Braddock  Glass  Co.  v.  Irwin  (153  Pa. 

St.  440),  733,  1184. 
Bradeen  v.  Brooks  (22  Me.  463),  483. 
Bradford  v.  Beyer  (17  Ohio  St.  388), 

947. 
Bradford  v.  Bush  (10  Ala,  386),  862, 

1229, 1281,  1294. 
Bradford  v.  Manley  (13  Mass.   139), 

1320,  1327,  1329. 
Bradford  v.  Marbury  (12  Ala.  520), 

740. 
Bradley  v.  Harwi  (43  Kan.  314),  1423. 
Bradley  v.  Holdsworth  (3  M.  &  W. 

422),  329. 
Bradley  v.  King  (44  111.  339),  1148. 
Bradley  v.  Obear  (10  N.  H.  477),  148. 
Bradley  v.  Poole  (98  Mass.  169),  936. 
Bradley  v.  Pratt  (23  Vt.  378),  122, 123, 

125. 
Bradley  v.   Rea   (14  Allen,  20),  207, 

1055. 
Bradley  v.  Rea  (103  Mass.  188),  207. 
Bradley  v.  Wheeler  (44  N.  Y.  495), 

519. 
Bradley  Mfg.  Co.  v.  Raynor  (70  111. 

App.  639),  49. 
Bradshaw  v.  Thomas  (7  Yerg.  497), 

564. 
Bradwaj'  v.    Groenedyke  (153    Ind. 

508),  1424. 
Brady  v.  Cassidy  (145  N.  Y.  171),  1078, 

1161. 


TABLE    OF   CASES    CITED. 


lxix 


References  are  to  sections:  Vol. 


Brady  v.  Cole  (164  111.  116),  936. 
Brady  v.  Harrahy  (21  Up.  Can.  Q.  B. 

340),  417. 
Brady  v.  Todd  (9  C.  B.  592),  1294. 
Brady  v.  Yost  (—  Idaho,  — ),  1724, 

1727, 1728. 
Bragg  v.  Cole  (6  J.  B.  Moore,  114), 

1102. 
Bragg  v.  Morrill   (49  Vt.   45),   1314, 

1346. 
Brainerd  v.  Hey drick  (32  How.  Pr. 

97),  451,  1003,  1004 
Braley   v.  Powers  (92  Me.  203),  875, 

936. 
Branan  v.  Atlanta  R  Co.  (108  Ga.  70), 

1563. 
Branch  v.  Palmer  (65  Ga.  210),  1148. 
Brand    v.    Focht  (1  Abb.  App.  Dec. 

185),  355. 
Brand  v.  Lock  (48  111.  App.  390),  1032. 
Brandas    v.   Barnett   (3    C.    B.   519), 

468. 
Brandas  v.  Barnett  (12  CI.  &  Fin.  787), 

468. 
Brandon  v.  Brown  (106  111.  519),  109, 

1307. 
Brandt  v.  Bowlby  (2  B.  &  Ad.  932), 

735,  779,  782,  787. 
Brandt  v.  Lawrence  (1  Q.  B.  D.  344). 

1141,  1145. 
Branson  v.  Turner  (77  Mo.  489),  816, 

1272,  1273,  1805. 
Brantley   v.  Thomas  (22  Tex.   270), 

1320, 1340. 
Brantley  v.  Wolf  (60  Miss.  420),  110. 
Branton  v.  Griffits  (L.  R.  2  C.  P.  Div. 

212),  1199. 
Brauer  v.  Shaw  (168  Mass.  198),  247. 
Braun  v.  Keally  (146  Pa.  St.  519),  46, 

49,  1027. 
Brawley  v.  United  States  (96  U  S. 

168),  1145,  1166,  1167,  1169. 
Brawn  v.  Keller  (43  Pa.  St.  104),  960, 

964,  966. 
Brayshaw  v.  Eaton   (5  Bing.  N.  C. 

231),  127,  12a 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Brayton  v.  Harding  (56  111.  App.  362), 

624. 
Brechwald  v.  People  (21  111.  App.  213), 

740. 
Breckenridge  v.  Ormby  (1  J.  J.  Marsh. 

239),  72,  93. 
Breckinridge  v.  Crocker  (78  Cal.  529), 

443. 
Breen  v.  Moran  (51  Minn.  525),  1214, 

1344. 
Breinig  v.  Meitzler  (23  Pa.  St.  156), 

184 
Breitung  v.  Lindauer  (37  Mich.  217), 

1423. 
Brent  v.  Green  (6  Leigh,  16),  461. 
Brenton  v.  Davis  (8  Blackf.  317),  1317, 

L344. 
Brett  v.  Carter  (2  Low.  458),  202. 
Bretz  v.  Diehl  (117  Pa.  St.  589),  26, 

1 15a 

Brewer  v.   Broad  wood  (22  Ch.   Div. 

105),  1096. 
Brewer  v.  Ford  (54  Hun,  116),  633. 
Brewer  v.  Horst-Lachmund  Co.  ( 

Cal.  — ),  437. 
Brewer  v.  Housatonic  R.  Co.  (104  Mass. 

593),  757,  1155. 
Brewer  v.   Salisbury  (9   Barb.  511), 

1190. 
Brewer  v.  Salt  Ass'n  (47  Mich.  526), 

499,  516,  760. 
Brewing  Ass'n  v.  Manufacturing  Co. 

(81  Tex.  99),  604,  645. 
Brewster  v.  Bours  (8  Cal.  502),  1428. 
Brewster  v.  Burnett  (125  Mass.   68), 

916. 
Brewster  v.  Carnes  (103  N.  Y.  556), 

1453. 
Brewster  v.  Kitchel  (1  Salk.  198),  1099. 
Brewster  v.  Van  Lien  (119  111.  554), 

1786,  1787. 
Brewster  v.  Wooster  (131  N.  Y.  473), 

629. 
Brick    Pres.    Church    v.    Mayor    (5 

Cowan,  538),  1099. 
Bricker  v.  Hughes  (4  Ind.  146),  342,714 


lxx 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Brickley  v.   Walker    (68   Wis.  563), 

138. 
Bridges  v.  Garrett  (L.  R.  5  C.  P.  451), 

1455,  1460. 
Bridgewater  Iron  Co.  v.  Enterprise 

Ins.  Co.  (134  Mass.  433),  275. 
Brigg  v.  Hilton  (99  N.  Y.  517),  1222, 

1392,  1395,  1808. 
Briggs    v.   A  Light   Boat  (7   Allen, 

287),  759. 
Briggs  v.  Hunton  (87  Me.  145),  1047, 

1346. 
Briggs  v.  Lucas  (86  Iowa,  202),  1826. 
Briggs  v.  Merrill  (58  Barb.  389),  947. 
Briggs  v.  McCabe  (27  Ind.  327),  107, 

109. 
Briggs  v.  McEwen  (77  Iowa,  303),  585. 
Briggs  v.  Parkman  (2  Mete.  258),  960. 
Briggs  v.  Rumely  Co.  (96  Iowa,  202), 

1251,  1385. 
Briggs  v.  Sizer  (30  N,  Y.  647),  1505. 
Briggs  v.  United  States  (143  U.  S.  346), 

485. 
Briggs  v.  Weston  (36  Fla.  629),  960. 
Brigham  v.  Carlisle  (78  Ala.  243),  1777. 
Brigham  v.  Hibbard  (28  Oreg.  387), 

731,  1293. 
Brigham  v.  Retelsdorf  (73  Iowa,  712), 

1320. 
Brighty  v.  Norton  (3  B.  &  S.  305),  1416. 
Bristol   Bread  Co.  v.  Maggs   (44  Ch. 

Div.  616),  252. 
Bristol  Savings  Bank  v.  Keavy  (128 

Mass.  298),  953. 
British  Columbia  Sawmill  Co.  v.  Net- 

tleship  (L.  R.  3  C.  P.  499),  750,  1770. 
British  &  Ames  Mtg.  Co.  v.  Tibballs 

(63  Iowa,  468),  1455. 
Britt  v.  Aylett  (11  Ark.  475),  947. 
Brittain  v.  Crowthers  (4  C.  C.  A.  341), 

953. 
Britton  v.  Turner  (6  N.  H.  481),  1162. 
Broadwater  v.  Quarne  (10  Mo.  277),  87. 
Broadwell  v.  Howard  (77  111.  305),  166, 

709,  964. 
Brock  v.  Rich  (76  Mich.  644),  950. 


Brockhaus  v.  Schilling  (52  Mo.  App. 

73),  939. 
Brockway  v.  Maloney  (102  Mass.  308), 

739. 
Broennenburgh  v.   Haycock    (Holt, 

N.  P.  630),  1270. 
Brogden  v.  Marriott  (2  Bing.  N.  C. 

473),  211. 
Brogden  v.  Metropolitan  Ry.  Co.  (3 

App.  Cas.  666),  218,  235,  238. 
Bromberger  v.  Griener  (18  Iowa,  477), 

1232. 
Bronson  v.  Chapman  (63  N.  Y.  625), 

331. 
Bronson  v.  Gleason  (7  Barb.  472),  1124. 
Bronson  v.  Leach  (74  Mich.  713),  1248. 
Brooker  v.  Scott  (11  M.  &  W.  67),  132. 
Brooklyn  Oil  Refinery  v.  Brown  (38 

How.  Pr.  444),  1137. 
Brookover  v.  Hurst  (1  Met.  665),  947. 
Brooks  v.  Byam  (2  Story,  525),  197. 
Brooks  v.  Hamilton   (15  Minn.  26), 

863. 
Brooks  v.  Hubbard  (3  Conn.  58),  1440. 
Brooks  v.  Jameson  (55  Mo.  505),  1446. 
Brooks  v.  Paper  Co.  (94  Tenn.  701), 

902,  1410. 
Brooks  v.  Powers  (15  Mass.  244),  960. 
Brooks  v.  White  (2  Mete.  283),  1420. 
Brower  v.  Goodyer  (88  Ind.  572),  905. 
Brower  v.  Lewis  (19  Barb.  574),  1325. 
Brower  v.  Peabody  (13  N.  Y.  121),  166. 
Brown  v.  Adair  (104  Ala.  652),  1050. 
Brown  v.  Bellows  (4  Pick.  179),  212. 
Brown  v.  Bigelow  (10  Allen.  242),  1270, 

1272,  1818. 
Brown  v.  Billington  (163  Pa.  St.  76), 

30,  580. 
Brown  v.  Blydenburgh  (7  N.  Y.  141), 

1453. 
Brown  v.  Brooks  (7  Jones,  93),  41. 
Brown  v.  Browning  (15  R.  I.  422), 

1058. 
Brown   v.   Butchers'   Bank   (6  Hill, 

443),  451. 
Brown  v.  Carter  (5  Ves.  Jr.  862),  955. 


TABLE    OF    CASES    CITED. 


lxxi 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Brown  v.  Castles  (11  Cush.  348),  937. 
Brown  v.  Church  Co.  (55   111.   App. 

615),  48. 
Brown  v.  Doyle  (69  Minn.  543),  1251. 
Brown  v.  Duncan  (10  B.  &  C.  93), 

1046.  1051. 
Brown  v.  Dunckel  (46  Mich.  29),  1423. 
Brown  v.  Edgington  (2  Man.  &  Gr. 

279),  1317,  1344,  1810,  1823. 
Brown  v.  Elkington  (8  M.  &  W.  132), 

1270. 
Brown  v.  Ellis  (19  Ky.  L.  2023),  1387. 
Brown  v.  Emerson  (66  Mo.  App.  63), 

1818. 
Brown  v.  Fitch  (43  Conn.  512),  599. 
Brown  v.  Foree  (7  B.  Mon.  357),  953. 
Brown  v.  Foster  (113  Mass.  136),  665, 

666. 
Brown  v.  Foster  (108  N.  Y.  387),  1391. 
Brown  v.  Hare  (3  H.  &  N.  484),  740, 

775,  787,  796. 
Brown  v.  Harmon  (29  App.  Div.  31), 

967. 
Brown  v.  Haynes  (52  Me.  580),  556, 

585,  588,  597,  599,  630. 
Brown  v.  Hitchcock  (28  Vt,  452),  23. 
Brown  v.  Johnson  (10  Mees.  &  Wels. 

331),  1135. 
Brown  v.  Lally  ( —  Minn.  — ),  1447, 

1448. 
Brown  v.  Leach. (107  Mass.  364),  880. 
Brown  v.  Montgomery  (20  N.  Y.  287), 

869. 
Brown  v.  Mudgett  (40  Vt.  68),  184. 
Brown  v.  Muller  (L.  R.  7  Ex.   319), 

1746. 
Brown  v.  McClanahan  (9  Baxt.  347), 

451. 
Brown  v.  Norman  (65  Miss.  369),  914, 

918. 
Brown  v.  0"Neal  (95  Cal.  262),  960. 
Brown  v.  Pierce  (97   Mass.   46),  908. 

981,  1302,  1794. 
Brown  v.  Railroad  Co.  (33  Mo.  309), 

17S. 
Brown  v.  Roland  (92  Tex.  54),  334. 


Brown  v.  Sanborn  (21  Minn.  402),  324, 

352. 
Brown  v.  Scott  (51  Pa.  St.  357),  1435. 
Brown  v.  Sharkey     (93    Iowa,    157), 

1749. 
Brown  v.  Webb  (20  Ohio,  389),  963. 
Brown  v.  Weldon  (27  Mo.  App.  251), 

1272. 
Brown  v.  West  (69  Vt.  440),  175. 
Brown  v.  Whipple  (58  N.  H.  229),  426, 

428. 
Brown  v.  Woods  (43  Tenn.  182),  1794. 
Brown  Grocery  Co.  v.  Beckett  ( — 

Ky. ),  175. 

Brown  &  Haywood  Co.  v.  Wunder 

(64  Minn.  450),  319. 
Brownell  v.  Chapman  (84  Iowa,  504), 

L779,  1790. 
Brownell   Car  Co.   v.   Barnard   (116 

Mo.  667),  1482. 
Brownfield  v.  Johnson  (128  Pa.  St. 

254),  716,1158. 
Browning  v.  Hamilton  (42  Ala.  484), 

714. 
Browning  v.  Simons  (17  Ind.  App.  45), 

1633,  1690. 
Brownlee  v.  Bolton  (44  Mich.  218), 

1641. 
Brim's  Appeal  (55  Pa.  St.  250),  1031, 

1032. 
Bruce  v.  Pearson  (3  Johns.  534),  242, 

746,  1161. 
Bruce  v.  Ruler  (2  Man.  &  Ry.  3),  869. 
Bruce  v.  Tolton  (4  App.  R.  144),  228. 
Bruggerman  v.  Hoerr  (7  Minn.  337), 

974. 
Brumbaugh  v.  Richcreek  (127  Ind. 

240),  81,  950. 
Brunswick  v.  Valleau  (50  Iowa,  120), 

1013,  1023. 
Brunswick,  etc.   Co.  v.    Hoover  (95 

Pa.  St.  508),  600. 
Bryan  v.  Brazil  (52  Iowa,  350),  1419. 
Bryan  v.  Lewis  (Ry.  &  Moo.  386),  203. 
Bryan  v.  Robert  (1  Strob.  Eq.  335), 

1719. 


lxxii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  7C8-1850. 


Bryans  v.  Nix  (4  M.  &  W.  775),  728, 

736. 
Bryant  v.  Booze  (55  Ga.  438),  247. 
Bryant  v.  Crosby  (36  Me.  562).  40. 
Bryant  v.  Crosby  (40  Me.  9),  1242, 

1247. 
Bryant  v.  Isburgh  (13  Gray,  607),  804, 

816,  1805. 
Bryant  v.  Moore  (26  Me.  84),  1281. 
Bryant  v.  Pember  (45  Vt.  487),  832. 
Bryant  v.  Pennell  (61  Me.  108),  636. 
Bryant  v.  Richardson  (12  Jur.   300), 

132. 
Bryant  v.  Smith  (87  Mich.  525),  237, 

263. 
Bryant  v.  Thesing  (46  Neb.  244),  1070, 

1077. 
Bryant  v.  Western  Union  TeL  Co. 

(17  Fed.  R.  825),  1031. 
Bryson  v.  Haley  (68  N,  H.  337),  1027. 
Buchanan  v.  Kauffman  (65  Tex.  235), 

1798. 
Buchanan  v.  Smith  (83  U.  S.  277), 

1540. 
Buck  v.  Pickwell  (27  Vt,  157),  336, 

439. 
Buckley  v.  Furniss  (15  Wend.  137), 

1542,  1571,  1577. 
Buckley  v.  Furniss  (17  Wend.  504), 

1602. 
Bucklin  v.  Davidson  (155  Pa.  St.  362), 

1106. 
Buckman  v.  Levi  (3  Camp.  414),  748, 

1183. 
Buckmaster  v.  Consumers  Ice  Co.  (5 

Daly,  313),  211. 
Buckmaster  v.  Smith  (22  Vt.  203), 

636. 
Buckstaff  v.  Russell  &  Co.  (49  U.  S. 

App.  253),  682. 
Buckstaff  v.  Russell  (79  Fed.  R.  611), 

1254. 
Bucy   v.  Pitts  Agricultural   Works 

(89  Iowa,  464),  1259, 1260. 
Budd  v.  Fairmaner  (8  Bing.  48),  1259, 
1276. 


Budd  v.  Power  (8  Mont.  380),  1302. 
Buddie  v.   Green   (3  H.  &   N.  906), 

1118. 
Budlong'  v.  Cottrell  (64  Iowa,  234), 

569,  599,  603. 
Buffalo   Barb   Wire   Co.  v.   Phillips 

(67  Wis.  129),  1395. 
Buffett  v.  Railroad  Co.  (40  N.  Y.  176), 

141. 
Buffington  v.  Gerrish  (15  Mass.  156), 

924,  928. 
Buffkin  v.  Baird  (73  N.  C.  283),  1713. 
Bugg  v.  Towner  (41  Ga.  315).  996. 
Bugg  v.  Wertheimer-Schwartz  Shoe 

Co.  (64  Ark.  12),  904. 
Bughman  v.  Central  Bank  (159  Pa. 

St.  94),  906. 
Buhl  Iron  Works  v.  Tenton  (67  Mich. 

623),  964,  1193. 
Bulkley  v.  Andrews  (39  Conn.  70),  23. 
Bulkley  v.  Morgan  (46  Conn.  393),  908, 

909,  1411. 
Bull  v.  Bray  (87  Cal.  286),  952,  972. 
Bull  v.  Bull  (43  Conn.  455),  1420. 
Bull  v.  Robinson  (10  Exch.  342),  1265, 

1298. 
Bullard  v.  Bank  of  Madison  (107  Ga. 

772),  549. 
Bullard  v.  Wait  (16  Gray,  55),  964. 
Bullitt  v.  Farrar  (42  Minn.  8).  875. 
Bullock  v.  Sprowls  (93  Tex.  188),  109. 
Bullock  v.  Tschergi  (13  Fed.  R.  345), 

365. 
Bulwinkle  v.  Cramer  (27  S.  C.  376), 

447,  1319. 
Bumgardner  v.  Leavitt  (35  W.  Va. 

194).  1727. 
Bunce  v.  McMahon  (6  Wyo.  24),  599. 
Bunker  v.  Barrow  (79  Me.  62),  1424. 
Bunn  v.  Postell(107  Ga.  490),  80. 
Bunney  v.  Poyntz  (4  B.  &  Ad.  568), 

1499. 
Burbank   v.    Crooker  (7   Gray,  158), 

597,  601. 
Burch  v.  Augusta  R.  R  Co.  (80  Ga. 

296),  446. 


TABLE    OF    CASES    CITED. 


lxxiii 


References  are  to  sections:  Vol.  I.  §§  1-797;  Vol.  n,  §§  708-1850. 


Smidle  (5  Colo.  App. 
Weinberger    (4  Colo. 


Burch  v.  Spencer  (15  Hun,  504),  1356, 

1357. 
Burcham    v.  Griffeth  (31  Neb.  778), 

488,  492. 
Burchinell   v.    Hirsh   (5   Colo.    App. 

500\  896. 
Burchinell  v. 

417),  964. 
Burchinell  v. 

App.  6),  964. 
Burditt  v.  Howe  (69  Vt.  563),  565. 
Burge  v.  Railroad  Co.  (32  Iowa,  101), 

1148. 
Burgert  v.  Borchert  (59  Mo.  80),  963. 
Burgess  v.  Chapin  (5  R.  I.  225),  1430. 
Burgett  v.  Burgett  (1  Ohio,  469),  947. 
Burghart  v.  Angerstein  (6  Car.  &  P. 

690),  127,  128,  130,  132. 
Burghart  v.  Hall  (4  Mees.  &  W.  727), 

127. 
Burke  v.  Dunn  (117  Mich.  430).  1474. 
Burke  v.  Fry  (44  Neb.  223),  175. 
Burke  v.  Shannon  ( —  Ky.  — ),  496, 

498,  536. 
Burks  v.  Hubbard  (69  Ala.  379),  1787. 
Burlington,  etc.  R.  Co.  v.  Boestler  (15 

Iowa,  555),  1072. 
Burn  by  v.   Bollett  (16  Mees.  &  W. 

644),  1357. 
Burnell  v.  Marvin  (44  Vt.  277),  592. 
Burnell  v.  Robertson  (10  III  282),  981, 

982. 
Burnet  v.  Bisco  (4  Johns.  235),  263. 
Burn  ham  v.    Ellmore  (66  Mo.  App. 

617),  928. 
Burnham-v.   Holt   (14    N.   H.   367), 

189. 
Burnham  v.  Sherwood  (56  Conn.  229). 

1277. 
Burnham  v.  Winsor  (5  Law  R.  507). 

1586. 
Burnley  v.  Tufts  (66  Miss.  48),  635. 
Burns  v.  Fidelity  Real  Estate  Co.  (52 

Minn.  31),  473. 
Burr  v.  De  La  Vergne  (102  N.  Y.  415), 

1729. 


Burr  v.  Redhead,  etc.  Co.  (52  Neb. 

617),  1235,  1336. 
Burr  v.  Wilson  (13  Up.  Can.  Q.  B. 

478),  1586. 
Burrell   v.   New  York   Salt   Co.   (14 

Mich.  34),  1709. 
Bun-ill  v.  Stevens  (73  Me.  395),  901, 

902. 
Burrowes  v.  Locke  (10  Ves.  470).  1223. 
Burrows  v.  State  (137  Ind.  474),  1433. 
Burrows  v.  Whitaker  (71  N.  Y.  291), 

499,  516,  519,  524,  529. 
Burt  v.  Dewey  (40  N.  Y.  283),  1302, 

1795. 
Burt  v.  Myer  (71  Md.  467),  1031. 
Burtis  v.  Thompson  (42  N.  Y.  256), 

1089,  1090. 
Burton  v.  Baird  (44  Ark.  556),  739. 
Burton  v.  Curyea  (40  111.  320),  491, 

1194,  1507. 
Burton  v.  Goodspeed  (69  111.  237),  49. 
Burton  v.  Great  Northern  Ry.  Co.  (9 

Exch.  507),  263. 
Burton   v.   Shot  well  (13   Bush,  271), 

253. 
Burton  v.  Stewart  (3  Wend.  236),  914, 

940. 
Burton  v.  Wells  (30  Miss.  688).  1423. 
Buschman  v.  Codd  (52  Md.  202),  184a 
Bush  v.  Breinig  (113  Pa.  St.  310),  86. 
Bush  v.  Collins  (35  Kan.  535),  952. 
Bush  v.  Fry  (15  Ont.  122),  169. 
Bush  v.  Holmes  (53  Me.  417),  362. 
Bush  v.  Railroad  Co.  (3  Mo.  App.  62), 

887. 
Bush  v.  Roberts  (111  N.  Y.  278),  953. 
Bushell  v.  Wheeler  (15  Q.  B.  442),  360, 

373. 
Bushnell    v.    Bicknell   (17  Me.  344), 

678. 
Busk  v.  Davis  (2  M.  &  S.  397),  702. 
Busk  v.  Spence  (4  Camp.  329),  654, 

1145. 
Bussing  v.  Rice  (2  Cush.  48),  924.  929. 
Busterud  v.  Farrington  (36  Minn.320j, 

875.  1843. 


lxxiv 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Butler  v.  Butler  (77  N.  Y.  472),  1091, 

1092,  1106. 
Butler  v.  Dorman  (08  Mo.  298),  1446, 

1447,  1448. 
Butler  v.  Gannon  (53  Md.  333),  600. 
Butler  v.  Hicks  (11  Sm.  &  M.  78),  719. 
Butler  v.  Hildreth  (5  Met.  49),  619, 

909. 
Butler  v.  Leighton  (149  Pa.  St.  351), 

1484. 
Butler  v.  School  Dist.  (149  Pa.  St.  351), 

660. 
Butler  v.  Smith  (35  Miss.  457),  1131. 
Butler  v.  Thompson  (92  U.  S.  412), 

434,  463. 
Butler  v.  Woolcott  (2  Bos.  &  Pul.  N. 

R  64),  1571. 
Butt  v.  Ellett  (19  Wall.  544),  202. 
Butterfield  v.  Barber  (20  R.  I.  99),  884. 
Butterfield  v.  Burroughs  (1  Salk.  211), 

1272. 
Butterfield  v.  Byron  (153  Mass.  517), 

1102. 
Butterfield  v.  Lathrop  (71  Pa.  St  225), 

23. 
Butters  v.  Haughwout  (42  111.  18),  924. 
Butterworth  v.  McKinly  (11  Humph. 

206),  510,  755. 
Butts  v.  Newton  (29  Wis.  632),  178, 

1455. 
Buxton  v.  Lister  (3  Atk.  383),  1722. 
Byasse  v.  Reese  (4  Mete.  372),  337,  361. 
Byers  v.  Chapin  (28  Ohio  St.  300),  274, 

1344. 
Byles  v.  Colier  (54  Mich.  1),  499,  502, 

516. 
Byrd  v.  Campbell  Printing  Press  Co. 

(90  Ga.  542),  1240,  1349,  1384. 
Byrd  v.  Hall  (2  Keyes,  646),  905. 
Byrd  v.  Rautman  (85  Md.  414),  900, 

908. 
Byrne  v.  Stewart  (124  Pa.  St.  450), 

936. 
Byrne  v.  Van  Tienhoven  (5  C.  P.  Div. 

344),  252,  257,  258. 
Byrnes  v.  Volz  (53  Minn.  110),  970. 


Byrnside  v.  Burdett  (15  W.  Va.  702), 

1302,  1306. 
Bywater  v.  Richardson  (1  Ad.  &  El. 
508),  933,  1265,  1270. 

Byxbee  v.  Dewey  ( Cal. ).  964. 

C.  &  C.  Electric  Motor  Co.  v.  Frisbie 

(66  Conn.  67),  669. 
Cabeen  v.  Campbell  (30  Pa.  St.  254), 

1528,  1559. 
Cabot  v.  Winsor  (1  Allen,  546),  446, 

1168. 
Cadbury  v.  Nolen  (5  Pa.  St.  320),  964. 
Cadogan  v.  Kennett  (2  Cowp.  432), 

945. 
Cady  v.  Walker  (62  Mich.  157),  1247. 
Cady  v.  Zimmerman  (20  Mont.  225), 

492. 
Cahen  v.  Piatt  (69  N.  Y.  348),  1398, 

1399,  1690,  1693,  1736,  1742. 
Cahn  v.  Packet  Co.  (1  Q.  B.  643),  166, 

169. 
Cain  v.  Bryant  (12  Heisk.  45),  1467. 
Cain  v.  McGuire  (13  B.  Mon.  340),  337. 
Caines  v.  Smith  (15  M.  &  W.  189), 

1097. 
Calahan  v.  Babcock  (21  Ohio  St.  281), 

1528,  1571,  1572,  1579. 
Calais  Steamboat  Co.  v.  Van  Pelt  (2 

Black,  372),  163,  755. 
Calcutta  Co.  v.  De  Mattos  (32  L.  J. 

Q.  B.  322),  733,  742,  743,  1118,  1179, 

1186. 
Caldwell  v.  Ball  (1  T.  R.  205),  981, 

1201. 
Caldwell  v.  Bowen  (80  Mich.  382),  923. 
Caldwell  v.  Hall  (49  Ark.  508),  1425. 
Caldwell  v.  Henry  (76  Mo.  254),  1841. 
Caldwell  v.  Jones  (115  Mich.  129),  138. 
Caldwell  v.  Tutt  (78  Tenn.  258),  1489. 
Caldwell  v.  Wallace  (4  Stew.  &  P. 

28-2),  1270. 
California  Canneries  Co.  v.  Scatena 

(117  Cal.  447),  451,  471. 
Calkins  v.  Lockwood  (17  Conn.  154), 

381,  382. 
Call  v.  Gray  (37  N.  H.  428),  964. 


TABLE   OF    CASES    CITED. 


lxxv 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1830. 


Call  v.  Seymour  (40  Ohio  St.  670),  599. 
Callahan  v.  Young  (90  Va.  574),  599, 

603. 
Callanan  v.  Brown   (31   Iowa,   333), 

1235,  1242. 
Callen  v.  Thompson  (3  Yerg.  475),  960. 
Callmeyer  v.  Mayor  (83  N.  Y.  116', 

1169. 
Calloway  v.  Witherspoon  (5Ired.  Eq. 

128),  90. 
Camden  Iron  Works  v.  Fox  (34  Fed. 

R  200),  1138,  1139. 

Cameron  v.  Calberg  ( Cal.  — ),  964. 

Cameron  v.  Clarke  (11  Ala.  259),  17, 

ia 

Cameron  v.  Mount  (86  Wis.  477),  1223. 
Cameron  v.  Wells  (30  Vt.  633),  1129, 

1131. 
Camp  v.  Hamlin  (55  Ga.  259),  1642. 
Camp  v.  Thompson   (25  Minn.   175), 

960. 
Campbell  v.  Alford  (57  Tex.  159),  1194. 
Campbell  v.  Atherton   (92  Mo.   66), 

569. 
Campbell  v.  Fleming  (1  Ad.  &  E.  40), 

942. 
Campbell  v.  Frankeno  (65  Ind.  591), 

1841. 
Campbell  v.   Hassel  (1   Stark.   233), 

1459. 
Campbell  v.  Hickok  (140  Pa.  St.  290), 

620. 
Campbell  v.  Kuhn  (45  Mich.  513),  80. 
Campbell  v.  Lambert   (36  La.  Ann. 

35),  263. 
Campbell  v.  Roddy  (44  N.  J.  Eq.  244), 

583,  647. 
Campbell  v.  Segars  (81  Ala.  259),  1050. 
Campbell  v.   Young  (9   Bush,   240), 

1057. 
Campbell  Printing  Press  Co.  v.  Dyer 

(46  Neb.  830),  599,  603. 
Campbell     Printing    Press    Co.     v. 

Henkle  (19  D.  C.  95),  614. 
Campbell  Printing  Press  Co.  v.  Marsh 

(20  Colo.  22),  1083,  1134,  1803. 


Campbell  Printing  Press  Co.  v.  Rock- 
away  Pub.   Co.   (56  N.  J.  L.  676), 

619. 
Campbell  Printing  Press  Co.  v.  Thorp 

(36  Fed.  R  414),  666. 
Campbell    Printing    Press    Co.    v. 

Walker  (114  N.  Y.  7),  585. 
Campbell    Printing    Press     Co.     v. 

Walker  (22  Fla.  412),  564, 599, 603. 
Campbellville  Lbr.   Co.   v.   Bradlee 

(96  Ky.  494),  1763. 
Canadian  Bank  v.  McCrea  (106  111. 

281),  545,  555. 
Canda  v.  Wick  (100  N.  Y.  127),  1092. 
Cangas  v.  Rumsey  Mfg.  Co.  (37  Mo. 

App.  297),  228. 
Cauham  v.  Piano  Mfg.  Co.  (3  N.  Dak. 

229),  1281,  1283,  1285,  128S. 
Cannan  v.  Bryce  (3  B.  &  Aid.  179), 

1012. 
Cannon  v.  Alsbury  (1  A.  K.  Marsh. 

76),  97. 
Canterberry  v.  Miller  (76  I1L  355),  451. 
Cantine  v.  Phillips  (5  Harr.  428),  132. 
Capehart  v.  Furman  Farm  Improve- 
ment Co.  (103  Ala.  671),  741. 
Capel  v.  Thornton  (3  Car.  &  P.  352), 

1446. 
Capen  v.  Glass  Co.  (105  111.  185),  1736, 

1737,  1742. 
Capron  v.  Porter  (43  Conn.  383),  960, 

984. 
Caraway  v.  Wallace  (2  Ala,  542),  56, 

145. 
Carbon  Block  Coal  Co.   v.  Murphy 

(101  Ind.  115),  1073. 
Carbon  Co.  v.  McMillin  (119  N.  Y. 

46),  208. 
Cardwell  v.   McClelland  (35    Tenn. 

159).  935. 
Carey  v.  Burrus    (20  W.   Va.   571), 

138. 
Carey  Lumber  Co.  v.  Cain  (70  Miss. 

628),  179,  955. 
Carhart  v.  Harshaw  (45  Wis.  340).  950. 
Carl  v.  McGonigal  (58  Mich.  567),  928. 


lxxvi 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1859. 


Carleton  v.  Jenks  (47  U.  S.  App.  734), 

1243,  1811,  1387. 
Carleton  v.  Lombard  (72  Hun,  254), 

1259. 
Carleton  v.  Lombard  (149  N.  Y.  137), 

1258,  1346. 
Carleton  v.  Woods  (28  N.  H.  290), 

1004. 
Carlisle  v.  United   States  (83  U.   S. 

147),  1024 
Carlisle  v.  Wallace  (12  Ind.  252),  25. 
Carll  v.  Emery  (148  Mass.  32),  948. 
Carlton  v.  Sumnar  (4  Pick.  516),  549, 

552. 
Carlton  v.  Whitcher  (5  N.    H.    196), 

1004 
Carman  v.  Smick  (15  N.  J.  L.  252),  293. 
Carnahan  v.  Hughes  (108  Ind.  225), 

1664 
Carney  v.  Barrett  (4  Oreg.  171),  186. 
Carney  v.  Carney  (7  Baxt.  284),  960. 
Carney  v.  Newberry  (24  111.  203),  1148. 
Carolan  v.  Brabazon  (3  Jo.  &  Lat. 

200),  804 
Carolee  v.   Handelis  (103  Ga.   299), 

1718. 
Carondelet  Iron  Works  v.  Moore  (78 

111.  65),  1235,  1380. 
Carpenter  v.  Carpenter  (45  Ind.  142), 

109,  119,  120. 
Carpenter  v.  First  Nat.  Bank   (119 

111.  352),  1763. 
Carpenter  v.  Galloway  (73  Ind.  418), 

352,  473. 
Carpenter  v.  Graham  (42  Mich.  191), 

I'.i'.t.  516.  702,  709. 
Carpenter  v.  Mayer  (5  Watts,  483), 

963. 
Carpenter  v.  Medford  (99  N.  C.  495), 

336. 
Carpenter  v.  McClure  (39  Vt.  9),  947. 
Carpenter  v.  Rodgers  (61  Mich.  381), 

87. 
Carpenter  v.  Scott  (13  R  L  477),  569, 

588,  590,  599. 
Carr  v.  Allatt  (3  H  &  N.  964).  202. 


Carr  v.  Breese  (81  N.  Y.  584),  973. 
Carr  v.  Clough  (26  N.  H.  280),  106, 109. 
Carr  v.  Duval  (14  Pet.  77),  228,  229, 

233,  244 
Carr  v.  London,  etc.  Ry.  Co.  (L.  R  10 

C.  P.  307),  845. 
Carr  v.  Moore  (41  N.  H.  131),  1818. 
Carrier  v.  Sears  (4  Allen,  336),  72. 
Carroll  v.  Sweet  (128  N.  Y.  19),  1433. 
Carson  v.  Baillie  (19  Pa.  St.  375),  1334 
Carson  v.  Browder  (2  Lea,  701),  342. 
Carstairs  v.  Kelley  Co.  (—  Ky.  App. 

),  905. 

Carstens  v.  Hanselman  (61  Mich.  426), 

184 
Carter  v.  Bingham  (32  Up.  Can.  Q.  B. 

615),  227,  228. 
Carter  v.  Crick  (4  H.  &  N.  412),  1320. 
Carter  v.  Harden  (78  Me.  528),  878. 
Carter  v.  Kingman  (103  Mass.  517), 

583,  628,  630. 
Carter  v.  Scargill  (L.  R.  10  Q.  B.  564), 

1075. 
Carter  v.  Smith  (23  Wis.  497),  909. 
Carter  v.  Toussaint  (5  B.  &  Aid.  855), 

385,  386. 
Carter  v.  Wallace  (32  Hun,  384),  677. 
Carter  v.  Willard  (19  Pick.  1),  380, 

491,  788,  1193. 
Carter  White  Lead  Co.  v.  Kimlin  (47 

Neb.  409),  264 
Cartwright  v.  Bate  (1  Allen,  514),  184 
Cartwright  v.  Wilmerding  (24  N.  Y. 

521),  1585,  1587. 
Carver  v.  Lane  (4  E.  D.  Smith,  168), 

400. 
Carver  v.  State  (69  Ind.  61),  1052. 
Carver  v.  Todd  (48  N.  J.  Eq.  102),  955. 
Cary  v.  Bancroft  (14  Pick.  315),  1437. 
Cary  v.  Gruman  (4  Hill,  625),  1805, 

1817. 
Cary  v.  Hotailing  (1  Hill,  311),  892. 
Case  v.  Green  (5  Watts,  262),  1139. 
( iase  v.  Hall  (24  Wend.  102),  931,  1 795. 
Case  v.  L"Oeble  (84  Fed.  R.  582),  580. 
Case  v.  Phelps  (39  N.  Y.  164),  973. 


TABLE    OF   CASES    CITED. 


lxxvii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1S50. 


Case  v.  Seass  (44  Mich.  195),  1431. 
Case  v.  Stevens  (137  Mass.  551),  1842. 
Case  Mfg.  Co.  v.  Garven  (45  Ohio  St. 

289),  599,  646. 
Case  Plow  Works  v.  Niles  &  Scott 

Co.  (90  Wis.  590),  1254,  1259,  1260, 

1349,  1817,  1818. 
Case  Plow  Works  v.  Niles  &  Scott 

Co.  (107  Wis.  9),  1736. 
Case  Plow  Works  v.  Ross  (74  Mo.  App. 

437),  914,  924. 
Case  Threshing  M.  Co.  v.  Haven  (65 

Iowa,  359),  1817. 
Case  Threshing  Mach.  Co.  v.  Smith 

(16  Oreg.  381),  449,  450. 
Case,  J.  I.,  Thresher  Co.  v.  Vennum 

(4  Dak.  92),  1384. 
Cash  v.  De  Long  ( —  Ky.  — ),  1835, 

1844. 
Cason  v.  Cheely  (6  Ga.  554),  321,  324. 
Cass  v.  Gunnison  (68  Mich.  147),  702. 
Cass  v.  Perkins  (23  111.  382),  963. 
Cassidy  v.  Daly  (11  W.  Dig.  222),  1502. 
Castanola  v.  Mo.  Pac.  Ry.  Co.  (24  Fed. 

R.  267),  1564. 
Castle  v.  Play  ford  (L.  R,  5  Ex.  165), 

1414. 
Castle  v.  Playford  (L.  R.  7  Ex.  98), 

529. 
Castle  v.  Sworder  (6  H.  &  N.  828), 

369. 
Castro  v.  lilies  (22  Tex.  479),  952. 
Caswell  v.  Hunton  (87  Me.  277),  937. 
Caswell  v.  Jones  (65  Vt.  457),  960. 
Catlin  v.  Tobias  (26  N.  Y.  217),  242, 

1162. 
Catling  v.  King  (5  Ch.  Div.  660),  434, 

435. 
Catterall  v.  Hindle  (L.  R.  1  C.  P.  187), 

1455. 
Calkins  v.  Fry  (35  Conn.  170),  86,  87. 
Caulkins  v.  Hellman  (47  N.  Y.  449), 

356,  392,  393. 
Cave  v.  Hastings  (7  Q.  B.  Div.  125), 

426,  428. 
Cawston  v.  Sturgis  (29  Oreg.  331),  875. 


Cayton  v.  Hardy  (27  Mo.  536),  144. 
Cayuga  Nat.  Bank  v.  Daniels  (47  N. 

Y.  631),  792. 
Cay  wood  v.  Timmons  (31  Kan.  394), 

499,  508,  516. 
Cefalw  v.   Fitzsimmons-Derrig    Co. 

(65  Minn.  480),  1377. 
Central  Bank  v.  Empire  Stone  Co. 

(26  Barb.  23),  1048. 
Central  Lith.  &  Eng.  Co.  v.  Moore 

(75  Wis.  170),  52,  314,  754. 
Central  Trust  Co.  v.  Arctic  Mfg.  Co. 

(77  Md.  202),  600,  1384,  1395. 
Central  Trust  Co.  v.  Marietta,  etc. 

R.  Co.  (48  Fed.  R.  868),  603. 
Chadsey  v.   Greene  (24  Conn.   562), 

1272. 
Chadwick  v.  Butler  (28  Mich.  349), 

1787. 
Challenge  Wind  Mill  Co.  v.  Kerr  (93 

Mich.  328),  254,  1255. 
Challoner  v.  Boyington  (91  Wis.  27), 

1425. 
Chalmere,  Ex  parte  (L.  R.  8  Ch.  App. 

289),  1093,  1094,  1513,  1518. 
Chamberlain   v.   Scott    (33  Vt.    80), 

1713. 
Chamberlain  v.   Smith    (44  Pa.   St. 

431),  32,  580. 
Chamberlin  v.  Fuller  (59  Vt.  247),  881, 

914,  934 
Chamber  of  Commerce  v.  Sollitt  (43 

111.  519),  1089. 
Chambers  v.  Board  of  Education  (60 

Mo.  370),  755,  761. 
Chambers  v.   Davidson  (L.  R.  1  Pr. 

Coun.  296),  1477.  1481. 
Chambers  v.  Lancaster  (160    N.  Y. 

342),  360,  1387. 
Chambers  v.  Miller  (7  Watts,  63),  1456. 
Chambers  v.  Short  (79  Mo.  204),  1447, 

1448. 
Chambers  v.  Union   Nat.  Bank   (78 

Pa.  St,  205),  1303. 
Chamblee  v.  McKenzie  \31  Ark.  155), 

527. 


lxxviii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol. 

Champion  v.  Plummer  (4  B.  &  P. 

252).  430,  434. 
Champion  v.  Wood  (79  Cal.  17),  872. 
Champion  Machine  Co.  v.  Mann  (42 

Kan.  372),  823,  1384,  1385,  1386. 
Champlin  v.  Rogers  (1  East.  92),  381. 
Champlin  v.  Rowley  (13  Wend.  259), 

513,  1162. 
Chancellor  v.   Wiggins  (4  B.  Mon. 

201),  1302,  1795. 
Chandelor  v.  Lopus  (2  Cro.  Jac.  2), 

1334. 
Chandler,  In  re  (13  Am.  L.  Reg.  310), 

1031,  1034. 
Chandler  v.  Fulton  (10  Tex.  2),  1537, 

1540,  1564,  1566,  1568. 
Chandler  v.  Glover  (32  Pa.  St.  509), 

121. 
Chandler  v.  Robertson  (9  Dana,  291), 

1130. 
Chandler  v.  Simmons  (97  Mass.  508), 

92,  109,  118,  508. 
Chanter  v.  Hopkins  (4  M.  &  W.  399), 
1155,   1207,   1208,   1224,   1259,  1311, 
1333,  1347,  1349. 
Chapin  v.  Cram  (40  Ma  561),  202. 
Chapin  v.  Dobson  (78  N.  Y.  74).  1255. 
Chapin  v.  Shafer  (49  N.  Y.  407).  106, 

108,  112,  114,  121. 
Chaplin  v.  Rogers  (1  East,  192),  361, 

386. 
Chapman  v.  Cole  (12  Gray,  141),  272. 
Chapman  v.  Hughes  (61  Miss.  339), 

132. 
Chapman  v.  Ingram  (30  Wis.  290), 

Hi:  is. 
Chapman  v.  Lathrop  (6  Cow.  110), 

549,  1121,1407. 
Chapman  v.  Morton  (11  Mees.  &  W. 

534),  1387,  1392. 
Chapman  v.  Murch  (19  Johns.  290), 

1235. 
Chapman  v.  Kansas  C.  etc.  Ry.  Co. 

(148  Mo.  481),  1702. 
Chapman  v.  Searle  (3  Pick.  38),  1487. 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Chapman  v.  Shepard  (39  Conn.  413), 

702,  708,  711. 
Chapman  v.  Speeler  (14  Q.  B.  621), 

1301,  1309. 
Chapman  v.  Weimer  (4  Ohio  St.  481), 

202. 
Chappell  v.  Raymond  (20  La.  Ann. 

277),  1458. 
Chappie  v.  Cooper  (13  Mees.  &  W.  252), 

130,  132. 
Charles  v.  Carter  (96  Tenn.  607),  781, 

1375. 
Chase  v.  Burkholder  (18  Pa.  St.  48), 

1004. 
Chase  v.  City  of  Lowell  (7  Gray,  33), 

431. 
Chase  v.  Ingalls  (122  Mass.  381),  569, 

583,  588,  590. 
Chase  v.  Ralston  (30  Pa.  St.  539),  964. 
Chase  v.  Washburn  (1  Ohio  St.  244), 

26. 
Chase  v.  Willard  (67  N.  H.  369),  1805. 
Chase  Elevator  Co.  v.  Boston  Tow  B. 

Co.  (155  Mass.  211),  1380. 
Chatham  Furnace  Co.  v.  Moffatt  (147 

Mass.  403),  875. 
Chemical  Electric  Co.  v,  Howard  (148 

Mass.  352),  834. 
Cheney  v.  Palmer  (6  Cal.  119),  956, 

964. 
Cheney  v.  Cook  (7  Wis.  413),  244,  253. 
Cheney  v.  Duke  (10  Gill  &  J.  11), 

1013. 
Cherry  v.  Arthur  (5  Wash.  787),  624, 

646. 
Cherry  v.  Smith  (3  Humph.  19),  264. 
Cherry  Valley  Iron  Works  v.  Flor- 
ence Co.  (64  Fed.  R.  569),  1144-1147. 
Chesapeake  Club  v.  State  (63  Md.  446), 

55. 
Cheshire  v.  Barrett  (4  McCord,  241), 

101,  121. 
Chester  v.  Bank  (16  N.  Y.  343),  40. 
Chesl  nut  v.  Harbaugh  (78  Pa.  St.  473), 

1053. 


TABLE    OF   CASES    CITED. 


Ixxix 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Chicago  v.  Tilley  (103  U.  S.  146),  1097. 
Chicago,  etc.  R.  Co.  v.  Dane  (43  N.  Y. 

240),  244,  245,  263. 
Chicago,  Mil.  &  St.  P.  Ry.  Co.  v.  Hoyt 

(149  U.  S.  1),  1104. 
Chicago  Packing  &  P.  Co.  v.  Tilton 

(87  111.  547),  1345. 
Chicago  Ry.  Equipment  Co.  v.  Mer- 
chants' Bank  (136  U.  S.  268),  650. 
Chicago,  etc.  R  Co.  v.  Painter  (15 

Neb.  394),  1571. 
Chicago,  etc.  Ry.  Co.  v.  Titterington 

(84  Tex.  218),  870. 
Chickering  v.  Bastress  (130  111.  206), 

21,  35,  46,  49. 
Chidell  v.  Galsworthy  (6  C.  B.  470), 

202. 
Child  v.  Allen  (33  Vt.  476),  619. 
Childers  v.  Bowen  (68  Ala.  221),  1452. 
Childers  v.  Talbott  (4  N.  M.  336),  288. 
Childs  v.  O'Donnell  (84  Mich.  533), 

681,  1245,  1380  1382. 
Childs  v.  Merrill  (63  Vt.  463),  884. 
Chinery  v.  Viall  (5  Hurls.  &  Norm. 

287),  1786. 
Chippendale  v.  Thurston  (4  Car.  &  P. 

101),  264. 
Chism  v.  Woods  (Hard.  531),  1302. 
Choice  v.  Moseley  (1  Bailey  L.  136), 

144-2. 
Choteau  v.  Jones  (11  111.  300),  977. 
Christian  v.  Greenwood  (23  Ark.  358), 

955. 
Christie's  Appeal  (85  Pa.  St.  463),  580. 
Christy  v.  Sullivan  (50  Cal.  337),  835. 
Chrisler  v.  Canaday  (90  N.  Y.  272),  936. 
Chubbuck  v.    Cleveland    (37    Minn. 

466),  878. 
Church  v.  Chapin  (35  Vt.  223),  957. 
Church  v.  Landers  (10  Wend.  79),  178. 
Church  v.  Muir  (33  N.  J.  L.  318),  947. 
Church  v.  McLeod  (58  Vt.  541),  603. 
Church   v.  Proctor  (66   Fed.  R.  240), 

996,  1041. 
Churchill  v.  Holton   (38  Minn.  519), 

1160,  1161. 


Churchill  v.  Hulbert   (110  Mass.  42), 

627. 
Churchill   v.   Merchants'  Bank    (19 

Pick.  532),  1135. 
Churchill  v.  Price  (44  Wis.  540),  1378. 
Chynoweth  v.  Tenny  (10  Wis.  397), 

202. 
Cincinnati  v.  Cameron  (33  Ohio  St. 

336),  1079. 
Cincinnati    Cooperage    Co.   v.   Gaul 

(170  Pa.  St.  545),  906. 
Cincinnati  Safe  Co.  v.  Kelly  (54  Ark. 

476),  585,  605. 
Cincinnati   Oyster  Co.  v.  Nat  Bank 

(51  Ohio  St.  106),  1434. 
Citizens'  Bank  v.  Williams  (128  N.  Y. 

177),  955. 
Citizens'  St.  Ry.  Co.  v.  Robbins  (144 

Ind.  671),  1787. 
City   Bank   v.  Barrow  (5  App.  Cas. 

664),  169. 
City  Ry.  Co.  v.  Basshor  (82  Md.  397), 

1251,  1350. 
City  Nat.  Bank  v.  Hamilton  (34  N.  J. 

Eq.  158),  973. 
City  Bank  v.  Rome,  etc.  R  Co.  (44 

N.  Y.  136).  1566. 
City  of  Elgin  v.  Schoenberger  (59  111. 

App.  384).  1351. 
Claflin  v.  Carpenter  (4  Mete.  580),  336, 

337. 
Claflin  v.  Furniture  Co.  (58  N.  J.  L. 

379),  564. 
Claflin  v.  Mess  (30  N.  J.  Eq.  211),  974. 
Claflin  v.  Rosenberg  (42  Mo.  439),  960, 

963. 
Claflin  v.  Taussig  (7  Hun,  223),  1428. 
Claghorn  v.  Lingo  (62  Ala.  230),  1244. 
Clampet  v.  Bells  (39  Minn.  272),  4:31, 

437. 
Clapp  v.  Thayer  (112  Mass.  296),  1168. 
Clare  v.  Maynard  (7  Car.  &  P.  741), 

1817. 
Claringbould  v.  Curtis  (21  L.  J.  Ch. 

541),  1719. 
Clark  v.  Baker  (5  Mete.  452),  912, 1398. 


lxxx 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Clark  v.  Baker  (11  Mete.  186),  1158. 
Clark  v.  Cox  (118  Mo.  652),  951. 
Clark  v.  Dales  (20  Wend.  61),  1407. 
Clark  v.  Des  Moines  (19  Iowa,   199), 

191. 
Clark  v.  Draper  (19  N.  H.  419),  493, 

499, 1481, 1515. 
Clark  v.  Fey  (121  N.  Y.  470),  653, 1139. 
Clark  v.  Flint  (22  Pick.  231),  924, 1724. 
Clark  v.   French  (23  Me.  221),  960, 

974. 
Clark  v.  Greeley  (62  N.  H.  394),  493, 

499,  541. 
Clark  v.  Griffith  (24  N.  Y.  595),  711. 
Clark  v.  Hayward  (51  Vt.  14),  636. 
Clark  v.  Hill  (117  N.  C.  11),  569. 
Clark  v.  Houghton  (12  Gray,  38),  812. 
Clark  v.  Jack  (7  Watts,  375),  32,  580, 

581. 
Clark  v.  Johnson  Foundry  Co.  (42  S. 

W.  R.  844),  1106. 
Clark  v.  Lee  (78  Mich.  221),  960. 
Clark  v.  Lindsay   (19  Mont.    1),  653, 

1136. 
Clark  v.  Marsiglia(lDenio,  317),  1091, 

1699. 
Clark  v.  Mayor  of  N.  Y.  (4  N.  Y.  338), 

1713. 
Clark  v.  Moore  (3  Mich.  55).  1162. 
Clark  v.  Mumford  (62  Tex.  531),  1798. 
Clark  v.  Murphy  (164  Mass.  490),  1447,. 

1448. 
Clark  v.  Nichols  (107  Mass.  547),  307, 

324. 
Clark  v.  Rice  (46  Mich.  308),  663,  667, 

680,  814. 
Clark  v.  Richards    Lumber    Co.   (68 

Minn.  282),  603. 
cia.k  v.  Bicker (14 N.  H.  44),  1004. 
Clark  v.  Smith  (88  111.  298),  1447.  141S. 
Clark  v.  Truitt  (183  111.  239),  1718. 
(  lark  v.  Tucker  (2  Sandf.  157),  416. 
(lark   v.   Van   Court  (100  End   113), 

102,  IDT,  109. 
Clark   v.    Wheeling  Steel  Works  (3 
U.  S.  App.  358),  1144. 


Clark's  Cove  Guano  Co.  v.  Dowling 

(85  Ala.  142),  1050. 
Clarke  v.  Brown  (77  Ga.  606),  999. 
Clarke  v.  Crandall  (27  Barb.  73),  1097. 
Clarke  v.  Foss  (7  Biss.  540),  1032. 
Clarke   v.    Hutchins  (14  East,  475), 

748,  1183. 
Clarke  v.  Spence  (4  Ad.  &  El.  448), 

510,  753,  762. 
Clarke  v.   Westrope  (18  C.  B.   765), 

209,  213,  674. 
Clarkson  v.  Stevens  (106  U.  S.  505), 

755. 
Clary  v.   Frayer  (8   Gill   &   J.  398), 

964. 
Clason  v.  Bailey  (14  Johns.  484),  449, 

455,  456,  464. 
Clay   v.   Allen  (63  Miss.    426),  1031, 

1032. 
Clay  v.  Yates  (1  Hurl.  &  Norm.  73), 

301. 
Clayton  v.  Andrews  (4  Burrows,  2101), 

296,  297,  299,  305. 
Clayton  v.  Hester  (80  N.  C.  275),  599. 
Cleary  v.  Folger  (84  Cal.  316),  629. 
Clem  v.  Newcastle  R.  Co.  (9  Ind.  488), 

872,  874. 
Clemens  v.    Clemens  (28  Wis.   637), 

947,  948. 
Clement  Mfg.  Co.   v.   Meserole  (107 

Mass.  362),  1092,  1690,  1790. 
Clements  v.  Smith  (9  Gill,  156),  1431. 
Clementson  v.  Grand  Trunk  Ry.  Co. 

(42  Up.  Can.  0,  B.  263),  1606. 
Cleveland  v.  Pearl  (63  Vt.  127),  1407. 
Cleveland  v.  Shoeman  (40  Ohio  St. 

176),  169. 
Cleveland  v.  Sterrett  (70  Pa.  St.  204), 

839,  1136,  1850. 
Cleveland  v.  Williams  (29  Tex.  204), 

483,  496,  519,  714. 
Cleveland  Mack  Works  v.  Lang  (67 

N.  H.  348),  597,  649,  650. 
Cleveland  Rolling  Mill  v.  Rhodes  (121 
U.  S.  255),  1090,    1138,  1144,   1145, 
1155,  1158,  1161. 


TABLE   OF    CASES    CITED. 


lxxxi 


References  are  to  sections:  Vol.  I.  §§  1-797;  Vol.  II,  §§  798-1850. 


Clews  v.  Jamieson  (38  C.  C.  A.  473), 

203. 
Clifford,  In  re  (2  Sawy.  428),  388.  456. 
Clift  v.  Moses  (112  N.  Y.  426),  1422. 
Clinan  v.  Cooke  (1  Sch.  &  Lefroy, 

22),  426. 
Clinton  Nat.  Bank  v.  Studemann  (74 

Iowa,  104).  485,  488,  492. 
Clipsham  v.  Vertue  \5  Q.  B.  265),  861. 
Clodfelter  v.    Hulett  (72  Ind.   148), 

1664. 
Cloke  v.   Shafroth  (137  I1L  393),  29, 

711,  716. 
Clopton  v.  Elkin  (49  Miss.  95),  1004. 
Clore  v.  Robinson  (100  Ky.  402),  1633. 
Close   v.   Crossland    (47  Minn.   500), 

1302,    1304,  1306,   1794,    1795,  1797, 

1805. 
Cloud  v.  Greasley  (125  111.  313),  433, 

441. 
Cloud  v.  Moorman  (18  Ind.  40),  492, 

708. 
Clough  v.  London  &  N.  W.  Ry.  Co. 

(L.  R.  7  Ex.  26),  908. 
Clough  v.  Patrick  (37  Vt.  421),  834. 
Clough  v.  Wkitcomb  (105  Mass.  482), 

1449. 
Clow  v.  Borst  (6  Johns.  37),  1466. 
Clow  v.  Woods  (5  S.  &  R.  275),  580, 

960,  964,  966. 
Clute  v.  Lovelace  (68  Cal.  254),  197. 
Clute  v.  Steele  (6  Nev.  335),  963. 
Clyde  Cycle  Co.  v.  Hargreaves  (78 

L  T.  296),  132. 
Coates  v.  Early  (46  S.  C.  220),  274. 
Coates  v.  Railton  (6  B.  &  Cress.  422), 

1575,  1577. 
Coates  v.  Wilson  (5  Esp.  152),  132. 
Coats  v.  Chaplin  (3  Ad.  &  EL,  N.  S., 

483),  738. 
Cobb  v.  Buswell  (37  Vt.  337),  649. 
Cobb  v.  Hall  (33  Vt.  233),  1089,  1090. 
Cobb  v.  Haskell  (14  Me.  303),  964. 
Cobb  v.  Prell  (5  McCrary,  80),  1031, 

1032,  1034. 
Cobb  v.  Reed  (2  Stew.  444),  1125. 


Coburn  v.  Odell  (30  N.  H.  540),  1004. 
Cobum  v.  Pickering  (3  N.    H.   415), 

960. 
Cochran  v.  Stewart  (21  Minn.  435), 

908. 
Cochran's  Will,  Case  of  (1  T.  B.  Mon. 

264),  68. 
Cockburn  v.  Ashland   Lbr.  Co.  (54 

Wis.  619),  1736,  1762. 
Cocke  v.  Campbell  (13  Ala.  286),  1281. 
Cocke  v.  Chapman  (2  Eng.  197),  380. 
Cocker  v.  Franklin  Mfg.  Co.  (3  Sumn. 

530),  1129,  1131. 
Cockrell  v.  Thompson  (85  Mo.  510), 

1032. 
Coddington  v.  Goddard  (16  Gray,  436), 

430,  434,  446,  448,  451,  456,  463,  464, 

465. 
Coddington  v.   Pale-ologo   (L.   R.   2 

Exch.  193),  1145. 
Codman  v.  Freeman  (3  Cush.  303), 

202. 
Coe  v.  Tough  (116  N.  Y.  273),  420. 
Coe  v.  Wagar  (42  Mich.  49),  17,  1411. 
Coffey  v.  Quebec  Bank  (20  Up.  Can. 

C.  P.  110),  714. 
Coffin  v.  State  (144  Ind.  578),  1760, 

1762. 
Coffman   v.   Hampton  (2  Watts  & 

Serg.  377),  351,  1455. 
Coffman  v.  Williams  (51  Tenn.  233), 

1787,  1820. 
Coggill  v.  Railroad  Co.  (3  Gray,  545), 

546,  554,  599.  740,  1437. 
Coghill  v.  Boring  (15  Cal.  213),  915, 919. 
Cogley  v.  Cushman  (16  Minn.  397),  95, 

106,  116. 
Cohen  v.  Candler  (79  Ga.  427),  603. 
Cohen  v.  Knox  (90  Cal.  266),  955. 
Cohen  v.  Pemberton  (53  Conn.  221), 

1160. 
Cohn  v.  Ammidown  (120  N.  Y.  398), 

1302, 1307. 
Cohn  v.  Broadhead  (51  Neb.  834),  898. 
Cohn  v.  Heimbauch    (86    Wis.    176), 

1053,  1054. 


lxxxii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Cohn  v.  Mitchell  (115  111.  124),  1727. 
Colcock  v.  Ferguson  (3  Desaus.  482), 

124. 
Colcord  v.  Dryfus  (1  Okla.  228),  809, 

964,  1181. 
Colcord  v.  McDonald  (128  Mass.  470), 

630. 
Cole  v.  Berry  (42  N.  J.  L.  308),  569, 

599,  1482. 
Cole  v.  Bryant  (73  Miss.  297),  723,  981. 
Cole  v.  Cassidy  (138  Mass.  437),  875, 

878. 
Cole  v.  Hines  (81  Md.  476),  610. 
Cole  v.  Northwestern  Bank  (L.  R.  9 

C.  P.  470),  169. 
Cole  v.  Pennoyer  (14  111.  158),  95. 
Cole  v.  Ross  (9  B.  Mon.  393),  1440. 
Cole  v.  Smith  (26  Colo.  506),  937,  938. 
Cole  v.  Swanston  (1  Cal.  51),   1121, 

1407. 
Cole  v.  Terrell  (71  Tex.  549),  970. 
Cole  v.  Tyler  (65  N.  Y.  73),  972. 
Cole  v.  White  (26  Wend.  511),  960. 
Coleman  v.  Applegarth  (68  Md.  21), 

257. 
Colerick  v.  Hooper  (3  Ind.  316),  437. 
Coles  v.  Kennedy  (81  Iowa,  360),  936. 
Coles  v.  Trecothick  (9  Ves.  234),  426. 
Collender  Co.  v.  Marshall  (47  Vt.  232), 

569. 
Colles  v.  Swensberg  (90  Mich.  223), 

682. 
Collette  v.  Weed  (68  Wis.  428),  1248, 

1255. 
Collins  v.  Canty  (6  Cush.  415),  1080. 
Collins  v.   Delaporte  (115  Mass.  74), 

1089,  1091. 
Collins  v.  Houston  (138  Pa.  St.  481), 

541. 
Collins  v.  Jackson  (54  Mich.  186),  936, 

1242. 
Collins  v.  Newton  (7  Baxt.  269),  1448. 
Collins  v.  Wilhoit  (35  Mo.  App.  585\ 

603. 
Collins  v.  Wilhoit  (108  Mo.  451),  599. 
Collyer  v.  Moulton  (9  R.  I.  90),  804. 


Colorado  Springs  Live  Stock  Co.  v. 

Godding  (20   Colo.  249),   731,    765, 

1186. 
Colt  v.  Owens  (90  N.  Y.  368),  1132, 

1787. 
Colton  v.  Stanford  (82  Cal.  351),  879. 
Columbia  Club  v.  McMaster  (35  S.  C. 

1),  55. 
Columbia    Rolling    Co.    v.    Beckett 

Foundry  Co.  (55  N.  J.  L.  391),  660, 

681. 
Columbian  Iron  Works  v.  Douglas 

(84  Md.  44),  1154,  1209,  1210,  1814 
Columbus  Buggy  Co.  v.  Turley  (73 

Miss.  529),  601. 
Colvin  v.  Weedman  (50  111.  311),  1130. 
Colvins  v.  Williams  (3  H.  &  J.  38), 

331. 
Col  well  v.   Keystone    Iron    Co.   (36 

Mich.  51),  526. 
Comaita  v.  Kyle  (19  Nev.  38),  960. 
Coman  v.  Thompson  (47  Mich.  22), 

342. 
Combs  v.  Bateman  (10  Barb.  573),  414. 
Comer  v.  Cunningham  (77  N.  Y.  391), 

599,  890,  891. 
Comey  v.  Pickering  (63  N.  H.  126), 

150,  151. 
Comfort  v.  Kiersted  (20  Barb.  472), 

755,  764. 
Commercial  Nat.  Bank  v.  Gillette  (90 

Ind.  268),  714. 
Commercial  Bank  v.  Hurt  (99  Ala. 

130),  1507. 
Commercial  Bank  v.  Kortright  (22 

Wend.  348),  162. 
Commercial  Bank  v.   Pfeiffer    (108 

N.  Y.  242).  792. 
Commercial  Nat.  Bank  v.  Pirie  (82 

Fed.  R.  799),  905,  924. 
Commins  v.  Scott  (L.  R.  20  Eq.   11), 

435. 
Commonwealth  v.  Call  (21  Pick.  515), 

895. 
Com  mon  wealth  v.  Clark  (14  Gray, 

307),  16. 


TABLE   OF    CASES    CITED. 


lxxxiii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Commonwealth  v.  Davis  (12  Bush, 

240)..  13. 
Commonwealth  v.  Devlin  (141  Mass. 

423),  543. 
Commonwealth  v.  Ewing  (145  Mass. 

119),  55. 
Commonwealth  v.  Fleming  (130  Pa. 

St.  138),  739,  740,  777,  793,  1029. 
Commonwealth  v.  Hantz  (2  Pa.  St. 

334),  122. 
Commonwealth  v.  Harley  (7  Mete. 

462),  895. 
Commonwealth  v.  Hess  (148  Pa.  St. 

98),  483.  485,  492,  1029. 
Commonwealth  v.  Jeffries  (7  Allen, 

548),  887. 
Commonwealth  v.  Miller  (131  Pa.  St. 

118),  54 
Commonwealth  v.  Packard  (5  Gray, 

101),  12. 
Commonwealth    v.    Pomphret    (137 

Mass.  564),  55. 
Commonwealth  v.  Savings  Bank  (137 

Mass.  431),  38,  688,  689. 
Commonwealth  v.  Smith  (10  Allen, 

448),  141. 
Commonwealth  v.  Smith  (102  Mass. 

144),  55. 
Commonwealth  v.  Vieth  (155  Mass. 

442),  54. 
Commonwealth  v.  Warren  (160  Mass. 

533),  54. 
Commonwealth  v.  Wood  (142  Mass. 

459),  937. 
Commonwealth    v.  Worcester    (126 

Mass.  256),  54. 
Comstock  v.  Affoelter  (50  Mo.  411), 

1182. 
Comstock  v.  Sanger  (51  Mich.  497), 

207,  1392,  1659. 
Comstock  v.  Scales  (7  Wis.  159),  202. 
Comtoir  d'Escompte  v.  Dresbach  (78 

CaL  15),  1433. 
Conahle  v.  Lynch  (45  Iowa,  84),  49. 
Conant  v.  National  State  Bank  (121 

Ind.  323),  1254,  1347. 


Conard  v.  Atlantic  Ins.  Co.  (1  Pet. 

386),  166,  1201. 
Conawingo  Refining  Co.  v.  Cunning- 
ham (75  Pa.  St.  138),  1136. 
Conemaugh  Gas  Co.  v.  Jackson  Farm 

Gas  Co.  (186  Pa.  St.  443),  1721. 
Congar  v.  Chamberlain  (14  Wis.  258), 

1248. 
Congdon   v.  Kendall  (53  Neb.  282), 

741. 
Conger  v.  Railroad  Co.  (17  Wis.  477), 

1437. 
Congreve  v.  Evetts  (10  Excb.  298), 

202. 
Conklin  v.  Osborn  (7  Ind.  553),  103, 

121. 
Conley  v.  Sims  (71  Ga.  161),  1050. 
Conly  v.  Friedman  (6  Colo.  App.  160), 

964. 
Conn  v.  Coburn  (9  N.  H.  368),  132. 
Connecticut  Mut.  L.  Ins.  Co.  v.  Smith 

(117  Mo.  261),  953,  954. 
Connecticut  Valley,  etc.  Co.  v.  Trust- 
ees (32  App.  Div.  83),  673. 
Conner  v.  Henderson  (15  Mass.  319), 

914,  916. 
Conner   v.  Robertson  (37  La.   Ann. 

814),  203,  1032. 
Connersville  v.  Wadleigh  (7  Blackf. 

102),  1272. 
Connihan   v.   Thompson   (111   Mass. 

270),  909. 
Connor  v.  Black  (119  Mo.  126),  1032. 
Connor  v.  Stanley  (72  Cal.  556),  64. 
Conrad  v.  Fisber  (37  Mo.  App.  353), 

1512. 
Conroe  v.  Birdsall  (1  Johns.  Cas.  127), 

124. 
Conrow   v.   Little   (115    N.   Y.   387), 

909. 
Consolidated  Milling  Co.  v.  Fogo  (104 

Wis.  92),  901,  905,  906. 
Constania,  The  (3  Eng.  Adm.  6  Rob. 

321),  1543. 
Consumers'  Ice  Co.  v.  Webster  (32 

N.  Y.  App.  Div.  592),  267. 


lxxxiv 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Converse  v.  Blumrich  (14  Mich.  109), 

863,  875. 
Converse  v.  Sickles  (146  N.  Y.  200), 

928. 
Conway  v.  Bush  (4  Barb.  564),  1437. 
Conyers  v.  Ennis  (2  Mason,  236),  1594. 
Cook  v.  Barnes  (36  N.  Y.  520),  1429. 
Cook  v.  Brandeis  (3  Mete.  555),  1643, 

1682. 
Cook  v.  Corthell  (11  R.  I.  482),  202. 
Cook  v.  Deaton  (3  Car.  &  P.  114),  127, 

128. 
Cook  v.  Gill  (83  Md.  177),  882. 
Cook  v.  Gilman  (34  N.  H.  556),  915. 
Cook  v.  Gray  (6  Ind.  335),  1136. 
Cook  v.  Johnson  (12  N.  J.  Eq.  51),  970, 

971,  972. 
Cook  v.  Logan  (7  Iowa,  141),  714. 
Cook  v.  Mann  (6  Colo.  21),  964. 
Cook  v.  Moseley  (13  Wend.  277),  1836. 
Cook  v.  Van  Home  (76  Wis.  520),  485, 

496. 
Cook  Mfg.  Co.  v.  Randall  (62  Iowa, 

245),  1755. 
Cooke  v.  Cooke  (43  Md.  522),  970. 
Cooke  v.  Ludlow  (2  Bos.  &  P.  [N.  R.] 

119),  740. 
Cooke  v.  Millard  (5  Lans.  246),  324. 
Cooke  v.  Millard   (65  N.  Y.  352),  304, 

305,  349,  371. 
Cooke  v.  Oxley  (3  T.  R.  653),  245,  252. 
Cool  v.  Peters  Lumber  Co.  (87  Ind. 

531),  336. 
Cooley  v.  Gillan  (54  Conn.  80),  564. 
Cooley  v.  Perrine   (12  Vroom,  322), 

1281,  1294. 
Cooley  v.  Willard  (34  111.  68),  1453. 
Coolidge  v.  Brigham   (1  Mete.  547), 

915. 
Coolidge  v.  Heneky  (11   Oreg.  327), 

953. 
Coombs  v.  Emery  (14  Me.  404 ),  !  1 151 ». 
Coombs  v.  Railway  Co.  (3  H.  &  N. 

510),  369. 
Coon   v.   Spaulding  (47   Mich.    162), 

1133. 


Cooney  v.    Wade  (4    Humph.    444), 

1456. 
Cooper,   Ex  parte   (11   Ch.  Div.  68), 

1499,  1582,  1583,  1602. 
Cooper  v.  Bill  (3  H.  &  C.  722),  515, 

1495. 
Cooper  v.  Elston  (7  T.  R.  14),  307,  400. 
Cooper    v.   Lansing  Wheel   Co.    (94 

Mich.  272),  264. 
Cooper  v.  Lovering  (108  Mass.  77),  937. 
Cooper  v.  Macdonald  (7  Ch.  Div.  293), 

135. 
Cooper  v.  McNamara  (92  Iowa,  243), 

186. 
Cooper  v.  Schlesinger  (111  U.  S.  148), 

875. 
Cooper  v.  Shepherd  (3  Com.  B.  266>, 

56. 
Cooper  v.  Smith  (15  East,  103),  427. 
Cooper  v.  State  (37  Ark.  412),  13. 
Copas  v.- Provision  Co.  (73  Mich.  541), 

1242,  1356,  1357,  1358. 
Cope  v.  Rowlands  (2  Mees.  &  Wels. 

149),  1046,  1047. 
Copenrath  v.  Kienby  (83  Ind.  18),  76. 
Copland  v.  Bosquet  (4  Wash.  C.  C. 

588),  543. 
Coplay  Iron  Co.  v.  Pope  (108  N.  Y. 

232),  1391,  1392,  1395. 
Coquard  v.  Wernse  (100  Mo.  131),  29. 
Corbet  v.  Wolford  (48  Md.  426),  286, 

288. 
Corbett  v.  Brown  (8  Bing.  33),  876. 
Corbett  v.  Wolford  (84  Md.  426),  361. 
Corbin  v.  Tracy  (34  Conn.  325),  1729. 
Corbit  v.  Smith  (7  Iowa,  60),  74.^ 
Corbitt  v.  Salem  Gas   Light  Co.  (6 

Oreg.  405),  442. 
Corcoran  v.  White  (146  Mass.  329), 

228. 
Cordage  Co.  v.  Wohlhuter  (71  Minn. 

484),  1818. 
Corder  v.  Williams  (40  Iowa,  583),  970. 
Cordes  v.  Miller  (39  Mich.  581),  1099. 
Corey  v.  Burton  (32  Mich.  30),  95,  113. 
Corey  v.  Corey  (19  Pick.  29),  186. 


TABLE    OF   CASES    CITED. 


lxxxv 


References  are  to  sections:  Vol, 

Corgan  v.  Frew  (39  111.  31),  964. 
Cork  Distilleries  Co.  v.  Railway  Co. 

(L.  R.7H.L  269),  736,  787. 
Cornell  University  v.  Fiske  (136  U. 

S.  152).  143. 
Cornforth  v.  Rivett  (2  M.  &  Sel.  510), 

1438. 
Corning  v.  Abbott    (54  N.   H.   469), 

1018,  1046,  1051. 
Corning    v.   Burden   (15  How.  270), 

834. 
Corning  v.  Colt  (5  Wend.  253),  746, 

1161. 
Corning  v.  Strong  (1  Ind.  329),  1455. 
Corninger  v.  Crocker  (62  N.  Y.  151), 

1137. 
Cornish  v.  Abington  (4  H.  &  N.  549), 

845. 
Cornwall  v.  Mix  (—  Idaho,  — ),  964. 
Corpe  v.  Overton  (10  Bing.  252),  109. 
Cort  v.  Ambergate   N.  &   B.  &   E. 

Junction  R.  Co.  (17  Q.  B.  127),  1090, 

1092.  1097,  1106. 
Cortland  Mfg.  Co.  v.  Piatt  (83  Mich. 

419),  896,  909. 
Cortland  Wagon  Co.  v.  Sharvey  (52 

Minn.  216),  603. 
Cory  v.  Barnes  (63  Vt.  456),  1522. 
Cory  v.  Cory  (1  Ves.  Sr.  19),  87. 
Cosgrove  v.  Bennett  (32  Minn.  371), 

1259,  1314,  1349,  1350,  1352. 
Costigan  v.   Hawkins  (22  Wis.  74), 

836,  912,  1303. 
Costigan  v.   Mohawk   R.   R.   Co.    (2 

Denio,  609),  1106. 
Cothay  v.  Tute  (3  Camp.  129),  1183. 
Cothran  v.  Ellis  (125  111.  496),  1031, 

1039. 
Cotten  v.  McKenzie  (57  Miss.   418), 

1004. 
Cotten  v.  Willoughby  (83  N.  C.  75), 

202. 
Cottrcll  v.  Bank  (89  Ga,  508),  569. 
Cottrell  v.  Carter  (173  Mass.  155),  599. 
Cottrell  v.  Merchants'  Bank  (89  Ga. 

508),  603. 

g 


I,  §§  1-797;  Vol.  II,  §§  798-1850. 

Cottril  v.  Krum  (100  Mo.  397),  881, 

1841. 
Coty  v.  Barnes  (20  Vt.  78),  963. 
Cotzhausen  v.  Simon  (47  Wis.  103), 

875. 
Council  Bluffs  Iron  Works  v.  Cuppey 

(41  Iowa,  104),  1187, 1189. 
Counselman   v.   Reichart  (103  Iowa, 

430),  1031. 
Court  v.  Snyder  (2  Ind.   App.  440), 

1311,  1316,  1319. 
Courtney   v.   Boswell   (65  Mo.   196), 

1817. 
Courtright  v.  Leonard  (11  Iowa,  32), 

714. 
Couse  v.  Tregent  (11  Mich.  65),  599. 
Couston  v.  Chapman  (L.  R.  2  Sc.  App. 

250),  1370,  1377. 
Coutourier  v.  Hastie  (5  H.  L.  673), 

199. 
Covanhovan  v.  Hart  (21  Pa.  St.  495), 

955. 
Covell  v.  Hitchcock  (23  Wend.  611), 

1559,  1576,  1579. 
Cover  v.   Smith  (82  Md.  586),   1031, 

1032. 
Covill  v.  Hill  (4  Denio,  323),  154,  156. 
Cowan  v.  Dodd  (3  Coldw.  278),  834. 
Cowan    v.    Manufacturing    Co.    (92 

Tenn.  376),  49. 
Cowan  v.  Mil  bourn  (L.  R.  2  Exch.  230), 

1010. 
Cowan  v.  Singer  Mfg.  Co.  (92  Tenn. 

376),  569,  599. 
Cowasjee  v.  Thompson  (5  Moore,  P.  C. 

165),  1497. 
Cowdry  v.  Vanden burgh  (101  U.  S. 

572),  162. 
Cowles  v.  Whitman  (10  Conn.  121), 

1727. 
Cowley  v.  Smyth  (46  N.  J.  L.  380), 

875,  877,  878. 
Cowper  v.  Andrews  (Hobart,  40),  213. 
Cox  v.  Gerkin  (38  111.  App.  340),  1843. 
Cox  v.  Highley  (100  Pa.  St.  249),  875. 
Cox  v.  Long  (69  N.  C.  7),  1079,  1395. 


lxxxvi 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Cox  v.  Prentice  (3  Maule  &  Sel.  344), 

274. 
Cox  Shoe  Co.  v.  Adams  (105  Iowa, 

402),  895,  896,  905,  924. 
Coxe  v.  Heisley  (19  Pa,  St.  243),  1264. 
Coyle   v.  Baum  (3   Okla.  695),  1344, 

1822,  1826. 
Crabtree  v.  Kile  (21  111.  180),  816, 1393, 

1805. 
Crabtree  v.   Messersmith   (19  Iowa, 

179),  1089,  1090. 
Craddook  v.  Dwight  (85  Mich.  587), 

1426. 
Craft  v.  McConoughy  (79  III.  346),  208. 
Craft  v.  Parker  (96  Mich.  245),  1356, 

1357. 
Cragia  v.  Coe  (29  Conn.  51  \  599. 
Craig  v.  Godfroy  (1  Cal.  415),  461. 
Craig  v.  Harper  (3  Cush.  158),  244. 
Craig  v.  Miller  (22  U.  C.  C.  P.  348), 

1225. 
Craig  v.  Van  Bebber  (100  Mo.  584),  96, 

109. 
Cramer  v.  Reford  (17  N.  J.  Eq.  367), 

973. 
Crampton  v.  Marble  Co.  (60  Vt.  291), 

1786. 
Crane  v.  Elder  (48  Kan.  259),  937. 
Crane  v.  Roberts  (5  Me.  419),  660. 
Crane  v.  Wilson  (105  Mich.  554),  1138. 
Crane  Boot  &  Shoe  Co.  v.  Trentman 

(34  Fed.  R  620),  918. 
Crane  Co.  v.  Columbus  Constr.  Co. 

(46  U.  S.  App.  52),  1817. 
Crane  Elevator  Co.  v.  Clark  (53  U.  S. 

App.  257),  668. 
Cranson  v.  Goss  (107  Mass.  439),  1054. 
Crapo  v.  Kelly  (16  Wall.  610).  649. 
Crapo  v.  Seybold  (36  Mich.  444),  711. 
Crater  v.  Binninger  (33  N.  J.  L.  513), 

L843. 
Craven  v.  Ryder  (6  Taunt.  433),  774, 

1497. 
( !raver  v.  IiornburgC'C  Kan.  94),  1344. 
Cravins  v.  Gant  (4  T.  B.  Mon.   126), 

932. 


Crawford  v.  Davis  (99  Pa.  St.  576), 

960,  988. 
Crawford  v.  Feder  (34  Fla.  397),  138. 
Crawford  v.  Forristall  (58  N.  H.  114), 

981,  986. 
Crawford  v.  Kirksey    (55    Ala.    282), 

955,  960. 
Crawford  v.  Scovell  (94  Pa.   St.  48), 

74,  77. 
Crawford  v.  Spencer  (92  Mo.  498),  203. 

1031,  1032,  1039. 
Crawford  v.  Whittaker  (42   W.   Va. 

430),  1448. 
Crawshay  v.  Eades  (1  B.  &  C.  181), 

1577,  1602. 
Crawshay  v.  Thompson  (4  M.  &  Gr. 

357),  876. 
Cream  City  Glass  Co.  v.  Friedlander 

(84  Wis.  53).  1378,  1387.. 
Creekmore  v.  Baxter  (121  N.  C.  31),  72. 
Creighton  v.  Comstock  (27  Ohio  St. 

548),  1168. 
Crenshaw  v.  Slye  (52  Md.  140),  1244. 
Crestwell  Ranch   Co.  v.  Martindale 

(63  Fed.  R.  84),  1149. 
Creveling  v.  Wood  (95  Pa  St.  152),  54. 
Crist  v.  Kleber  (79  Pa  St.  290),  580, 

588. 
Crittenden  v.  Posey  (38  Tenn.  311), 

1794. 
Crittenden  v.  Schermerhorn  (39  Mich. 

661),  184. 
Crites  v.  Wilkinson  (65  Cal.  559),  144. 
Crocker  v.  Gullifer  (44  Me.  491),  678, 

679. 
Crockett  v.  Scribner  (64  Me.  447),  311. 
Crofoot  v.  Bennett  (2  N.  Y.  258),  496, 

497,  499,  516,  519,  524,  527,  703. 
Croly  v.  Pollard  '(71  Mich.  612),  1309. 
Crommelin  v.  N.  Y.  &  H.  R.  Co.  (4 

Keyes,  90),  1475. 
Crompton  v.  Beach  (62  Conn.  25),  619. 
Crompton  v.  Pratt  (105  Mass.   255), 

568,  590. 
Crommell  v.  Wilkinson  (18  Ind.  365), 

1138. 


TABLE    OF    CASES    CITED. 


lxxxvii 


References  are  to  sections:  Vol. 

Croninger  v.  Paige  (48  Wis.  229),  816. 
Cronk  v.  Cole  (10  Ind.  485),  937. 
Croockewit  v.  Fletcher  (I  H.  &  N. 

893),  861. 
Crook  v.  Cowan  (64  N.  C.  743),  242, 

740. 
Crooks  v.  Moore  (1  Sandf.  297),  1640. 
Crookshank  v.  Burrell  (18  Johns.  58), 

305,  307. 
Croom  v.  Shaw.(l  Fla.  211),  1281. 
Crosby  v.  Baker  (6  Allen,  295),  636. 
Crosby  v.  Del.  and   Hud.  Canal  Co. 

(119  N.  Y.  334),  35,  755. 
Crosby  Hardwood  Co.  v.  Trester  (90 

Wis.  412),  337,  419. 
Crosby  v.  Hill  (39  Ohio  St.  100),  1447, 

1451. 
Crosland  v.  Hall  (33  N.  J.  Eq.  Ill), 

937. 
Cross  v.  Eglin  (2  B.  &  Ad.  106),  1168. 
Cross  v.  Gardner  (1  Show.  68),  931, 

1795. 
Cross  v.  Huntley  (13  Wend.  385),  834. 
Cross  v.  O'Donnell  (44  N.  Y.  661),  362, 

365,  393,  742,  1612. 
Cross  v.  Peters  (1  Greenl.  378),  902, 

937. 
■Crossen  v.  Murphy  (31  Oreg.  114),  914, 

915,  919. 
Crossley  v.  Maycock  (L.   R.   18  Eq. 

180),  236. 
•Crossman   v.   Johnson  (63  Vt.  333), 

1227,  1248,  1249. 
Crossman  v.  Universal  Rubber  Co. 

(127  N.  Y.  34),  1411. 
Crouch  v.  Carrier  (16  Conn.  505),  960. 
Crouch  v.  Hall  (15  111.  263),  1043. 
Crow  v.  Boyd  (17  Ala.  51),  17. 
Crowl  v.   Goodenberger  (112  Mich. 

683),  1161. 
Crown  Vinegar  Co.  v.  Wehrs  (59  Mo. 

App.  493),  1694. 
Croy  v.  Busenbark  (72  Ind.  48),  451. 
Croyle  v.  Moses  (90  Pa.  St.  250),  868, 

932,  935. 
■Cruess  v.  Fesoler  (39  Cal.  336),  937. 


I,  §§  1-797;  Vol.  n.  §§  798-1S50. 

Cruikshank  v.  Cogswell  (26  111.  366), 

963. 
Cruise  v.  Christopher  (5  Dana,  181),  90. 
Crumlish    v.   Central   Improvement 

Co.  (38  W.  Va.  390),  1467. 
Crummey  v.  Raudenbusch  (55  Minn. 

426),   1474,   1500,   1502,   1518,   1519, 

1520. 
Crymble  v.  Mulvaney  (21  Colo.  203). 

964. 
Cuff  v.  Penn  (1  Maule  &  Sel.  21).  1151, 
Culin  v.  Glass  Works  (108  Pa.  St. 

220),  1743. 
Culin  v.  Woodbury  Glass  WTorks  (108 

Pa.  St.  220),  1743. 
Cullen  v.  Bimm  (37  Ohio  St.  236),  1340. 
Cullom  v.  Wagstaff  (48  Pa.  St.  300), 

1130. 
Cuming  v.  Brown  (9  East,  506),  1564. 
Cummings  v.  Arnold  (3  Mete.  486), 

474,  804,  806,  1151. 
Cummings  v.  Cass  (52  N.  J.  L.  77), 

875. 
Cummings  v.  Gilinan  (90  Me.  524), 

485,  981. 
Cummings  v.  Henry  (10  Ind.  109),  87. 
Cummings  v.  Roebuck   (Holt,   172), 

468. 
Cundy  v.  Lindsay  (3  App.  Cas.  459), 

149,  154,  156.  269. 
Cunliffe  v.  Harrison  (6  Ex.  903),  746, 

1158,  1160.       • 
Cunningham  v.   Ashbrook    (20  Mo. 

553),  496,  502,  519,  524,  529. 
Cunningham  v.  Brown  (44  Wis.  72), 

210. 
Cunningham  v.  Cureton  (96  Ga.  489), 

650. 
Cunningham  v.  Hall  (4  Allen,  268), 

1350. 
Cunningham  v.  Nat.  Bank  (71  Ga. 

400),  1039. 
Cunningham  v.  Trevitt  (82  Me.  145i, 

603. 
Cunningham    v.    Williams    (43   Mo. 

App.  629),  428,  449. 


lxxxviii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol. 

Cunningham    Iron    Co.    v.   Warren 

Mfg.  Co.  (80  Fed.  R.  878),  1103. 
Curiven  v.  Quill  (165  Mass.  373),  1350. 
Curme  v.  Rauh  (100  Ind.  247),  148. 
Currier  v.  Knapp  (117  Mass.  324),  573, 

588,  590,  693. 
Curry  v.  St.  John  Plow  Co.  (55  111. 

App.  82),  121. 
Curtin  v.  Isaacsen  (36  W.  Va.  391), 

1474,  1485. 
Curtin  v.  Somerset  (140  Pa.  St.  70), 

878. 
Curtis  v.  Blair  (26  Miss.  309),  244 
Curtis  v.  Groat  (6  Johns.  168),  639. 
Curtis  v.  Pugh  (10  Q.  B.  Ill),  369. 
Curtis  v.  Leavitt  (15  N.  Y.  1),  1048. 
Curtis  Mfg.  Co.  v.  Williams  (48  Ark. 

325),  1344. 
Cusack  v.  Robinson  (1  B.  &  S.  299), 

393,  1181,  1496. 
Cushing  v.  Breed  (14  Allen,  376),  708, 

709,  964,  1302. 
Cushman  v.  Holyoke  (34  Me.  289),  527, 

529. 
Cushman  v.  Jewell  (7  Hun,  525),  628. 
Cushman  v.  Thayer  Mfg.  Co.  (76  N.  Y. 

365),  1724,  1727! 
Cutler  v.  Bower  (11  Ad.  &  El.  973), 

834. 
Cutler  v.  Gilbreth  (53  Me.  176),  1809. 
Cutler  v.  Pope  (13  Me.  377),  337,  341. 
Cutter  v.  Powell  (2  Smith  Lead.  Cas. 

1212),  1089. 
Cutting  v.  Grand  Trunk  Ry.  Co.  (13 

Allen,  381),  1690. 
Cutting  v.  Jackson  (56  N.  H.  253),  964. 
Cutting  Packing  Co.  v.  Packers'  Ex- 
change (86  Cal.  574),  200. 
Cutts  v.  Guild  (57  N.  Y.  229),  274. 
Daborich  v.  Emeric  (12  Cal.  161),  1794. 
Dady  v.  Condit  (163  111.  511),  879. 
Daggett  v.  Johnson  (49  Vt.  345),  667. 
Dake  Engine  Mfg.  Co.  v.  Hurly  (09 

Mich.  16),  1235. 
Dakota  Stock  Co.  v.  Price  (22  Neb.  96), 
1124, 1412. 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Dale's  Case  (Cro.  Eliz.  44),  931,  1795. 
Dalrymple  v.  Scott  (19  Ont  App.  477), 

1089. 
Dalton   v.  Bentley  (15  111.  420),  839, 

1850. 
Dalton  v.  Gib  (5  Bing.  N.  Cas.  198), 

128,  130. 
Dalton  v.  Thurston  (15  R  I.  418),  906. 
Daly  v.  Kimball  Co.  (67  Iowa,  132), 

812. 
Dalzell  v.  Fahys  Watch  Co.  (138  N.  Y. 

285),  1161. 
Dambmann   v.  Rittler  (70  Md.  380), 

264. 
Dame  v.  Dame  (38  N.  H.  429),  333. 
Dam  111  v.  Mason  (98  Mich.  237),  578. 
Damon  v.  Osborn  (1  Pick.  476),  401, 

702,  703. 
Dana  v.  Binney  (7  Vt.  493),  1424. 
Dana  v.  Boyd  (2  J.  J.  Marsh.   588), 

1392. 
Dana  v.  Fiedler  (12  N.  Y.  40),  1693, 

1736. 
Danbury   v.  Robinson  (1  McCarter, 

213),  977. 
Dando  v.  Foulds  (105  Pa.  St.  74),  580, 

658. 
Danforth  v.  Cushing  (77  Me.  182),  884. 
Danforth  v.  Walker  (37  Vt.  239),  1091, 

1702. 
Daniel  v.  Hannah  (106  Ga.  91),  210, 

211. 
Daniels  v.  Bailey  (43  Wis.  198),  336. 
Daniels  v.  Hollenbeck  (19  Wend.  408), 

1466. 
Daniels  v.  Nelson  (41  Vt.  161),  167. 
Daniels  v.   Newton  (114  Mass.  530), 

1089,  1090. 
Danube  &  Black  Sea  Co.  v.  Xenos  (13 

Com.  B.  825),  1089. 
D'Aquila  v.  Lambert  (Ambler,  399), 

L526,  1528,  1530. 
Darby  v.  Boucher  (1  Salk.  279),  132. 
Darling  v.  Wilson  (60  N.  H.  59),  636. 
Darling  v.  Younker  (37  Ohio  St.  487), 
1463. 


TABLE    OF    CASES    CITED. 


lxxxix 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  708-1850. 


Darnell  v.  Rowland  (30  Ind.  342),  65. 
Darst  v.  Brockway  (11  Ohio  St.  462), 

838,  1849. 
Dater  v.  Earl  (3  Gray,  482),  1013. 
Dauphiny  v.  Red  Poll  Creamery  Co. 

(123  Cal.  548),  358,  1387. 
David  v.  Insurance  Co.  (83  N.  Y.  265), 

451. 
David  v.  Park  (103  Mass.  501),  881. 
Davidson  v.  Burke  (143  111.  139),  955/ 
Davidson  v.  Crosby  (49  Neb.  60).  879. 
Davis  v.  Bigler  (62  Pa.  St.  242),  169. 
Davis  v.  Bradley  (28  Vt.  118),  51,  752, 

1194,  1327. 
Davis  v.  Bronson  (6  Iowa,  410),  1027. 
Davis  v.  Bronson  (2  N.  D.  300),  1091, 

1699. 
Davis  v.  Budd  (60  Iowa,  144),  702. 
Davis  v.  Burnett  (4  Jones,  71),  1281. 
Davis  v.  Caldwell  (12  Cush.  512),  128, 

130. 
Davis  v.  Cook  (14  Nev.  265),  148. 
Davis  v.  Davis  (119  Ind.  511),  1031. 
Davis  v.  Dudley  (70  Me.  236),  95. 
Davis  v.  Emery  (11  N.  H.  230),  628. 
Davis  v.  Fish  (1  G.  Greene,  408),  1741. 
Davis  v.  Giddings  (30  Neb.  209),  541. 
Davis  v.  Grand  Rapids  School  Furni- 
ture Co.  (41  W.  Va.  717),  1089, 1090, 

1743. 
Davis  v.  Hill  (3  N.  H.  382),  520,  714. 
Davis  v.  Iverson  (5  S.  Dak.  295),  823, 

1251,  1277. 
Davis  v.   Koenig  (165  Pa.   St.  347), 

1183. 
Davis  v.  Mitchell  (34  Cal.  81).  947. 
Davis  v.  Moore  (13  Me.  424),  401. 
Davis  v.  McFarland  (37  Cal.  634),  342, 

964,  1199. 
Davis  v.  Osgood  (69  N.  H.  427),  650. 

Davis  v.  Randall  (115  Mass.  547), . 

Davis  v.  Reilly  (1  Q.  B.  1),  1428. 
Davis  v.  Robinson  (67  Iowa,  355),  1813. 
Davis  v.  Rowed  (2  Pick.  64),  327,  461. 
Davis  v.  Russell  (52  Cal.   611),   166, 

1507. 


'  Davis  v.  Schwartz  (155  U.  S.  631),  952. 
Davis  v.  Shields  (26  Wend.  341),  439, 

456. 
Davis  v.  Sittig  (65  Tex.  497),  947. 
Davis  v.  Stewart  (8  Fed.  R.  803),  906. 
Davis  v.  Sweeney  (75  Iowa,  45),  1340, 

1344. 
Davis  v.  Turner  (3  Gratt.  423),  960. 
Davis  v.  Waterman  (10  Vt.  526),  1444. 
Davis  v.  Zimmerman  (40  Mich.  24), 

966. 
Davis'  Sons   v.   Robinson   (67  Iowa, 

355).  823. 
Davis  Sulphur  Ore  Co.   v.   Atlanta 

Guano  Co.  (109  Ga.  67),  1629,  1634, 

1650. 
Davison  v.  Collison  ("  Times,"  March 

14,  1885),  1561. 
Davison  v.  Davis  (125  U.  S.  90),  555. 
Davison  v.  Von  Lingen  (113  U.  S.  40), 

1138,  1145. 
Dawe  v.  Morris  (149  Mass.  188),  870, 

874,  885,  937. 
Dawes  v.  Peck  (8  T.  R.  330),  393,  740, 

787,  1181,  1496. 
Dawson  v.  Collis  (10  C.  B.  523),  1805. 
Dawson  v.  Dawson  (12  Iowa,  513),  186. 
Dawson  v.  Flash  (97  Ala.  530),  955. 
Dawson  v.  Pennamen    (65   Ga.    698), 

820. 
Day  v.   Bassett  (102  Mass.  445),  573, 

588,  590.  093. 
Day  v.  Cooley  (118  Mass.  524),  973. 
Day  v.  Cross  (59  Tex.  595),  1167. 
Day  v.  Gravel  (72  Minn.  159),  499. 
Day  v.  Jeffords  (102  Ga.  714),  1106. 
Day  v.   Mapes-Reeves  Construction 

Co.  (174  Mass.  412),  1337,  1391. 
Day  v.   McAllister    (15    Gray,    433), 

1057. 
Day  v.  Pool  (52  N.  Y.  416),  1222,  1272, 

1392,  1394,  1395,  1805. 
Day  v.  Raguet  (14  Minn.  273),  1320, 

1321. 
Day  Land  &  Cattle  Co.  v.  State  (68 

Tex.  526),  191. 


xc 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Day-light   Burner  Co.  v.  Ocllin    (51 

N.  H.  56),  175. 
Dayton    v.    Hooglung    (39   Ohio   St. 

671).  12S7,    1320,   1335,   1393,    1395, 

1844. 
Dayton  v.  Monroe  (47  Mich.  193),  915. 
Dean  v.  Connelly  (6  Barr,  239),  953. 
Dean  v.  Mason  (4  Conn.  428),  1254, 

1319. 
Dean  v.  Morey  (33  Iowa,  120),  1272. 
Dean  v.  Nichols  (95  Iowa,  89),  1385. 
Dean  v.  Yates  (22  Ohio  St.  388),  149, 

269,  887,  910. 
Dearborn  v.  Raysor  (132  Pa.  St.  231), 

580,  600. 
Dearborn  v.  Turner  (16  Me.  17),  677, 

678. 
Deason  v.  Boyd  (1  Dana,  45),  121. 
Deatherage  v.   Henderson  (43  Kan. 

684),  1455. 
Decan  v.  Shipper  (35  Pa,  St.  239),  149. 
Decell  v.  Lewenthal  (57  Mass.  331), 

123,  127,  131,  132. 
Decker  v.  Fredericks  (47  N.  J.  L.  469), 

1281. 
De  Cordova  v.  Smith  (9  Tex.  129), 

449. 
Dederick  v.  Wolf  (68  Miss.  500),  568, 

569,  619,  623. 
Dedman  v.  Earle  (52  Ark.  164),  643. 
Deel  v.  Berry  (21  Tex.  463),  1442. 
Deere  v.  Lewis  (51  111.  254),  1741, 1755. 
Deere  v.  Needles  (65  Iowa,  101),  965. 
Deering  v.   Chapman  (22  Me.  488), 

Kill!. 
Deering  v.  Thorn  (29  Minn.  120),  1286. 
Defenbaugh  v.  Weaver  (87  111.  132), 

1161. 
Defreeze  v.  Trumper  (1  Johns.  274), 

isoa 

Dehority  v.  Paxson  (97  Ind.  253),  382. 
Deitz  v.  SutclilFe  (80  Ky.  650),  901. 
Delamater  v.  Chappell  (48  Md.  244), 

671,  1887. 
Deland  v.  Vanstone  (26  Mo.  App.  297), 

336. 


Delano  v.  Blake  (11  Wend.  85),  121. 
Delano  v.  Case  (121  111.  247),  878. 
De  La  Vergne,  etc.  Co.  v.  New  Or- 
leans, etc.  R.  Co.  (51  La.  Ann.  1733), 

1374. 
Delavina  v.  Hill  (65  N.  H.  94),  1013, 

1022. 
Delaware,  The  (14  Wall.  579),  1254. 
Dellone  v.  Hull  (47  Md.  112),  912. 
De  Mattos  v.  Gibson  (4  De  G.  &  J. 

276',  1719, 
Demens  v.  Le  Moyne  (26  Fla.  323), 

1375. 
Demeritt  v.  Miles  (22  N.  H.  523),  947. 
Deming  v.  Chase  (48  Vt.  382),  1281, 

1294. 
Deming  v.  Darling  (148  Mass.  504), 

893,  936,  937,  1242. 
Deming  v.  Foster  (42  N.  H.  165),  1259, 

1314,  1315,  1349. 
Dempsey  v.  Gardner  (127  Mass.  381), 

964,  1193. 
Dennis  v.  Alexander  (3  Pa.  St.  50), 

499,  516,  527. 
Dennis  v.  Jones  (44  N.  J.  Eq.  513),  909. 
Dennis  v.  Stoughton  (55  Vt.  371),  1129. 
Denny  v.  Williams  (5  Allen,  1),  373. 
Densmore   v.  Turner  (14  Neb.  392), 

960. 
Denver,  etc.  Ry.  Co.  v.  Atchison,  etc. 

Ry.  Co.  (15  Fed.  R.),  208. 
Derby  v.  Johnson  (21  Vt.  17),  1091. 
Derby  v.  Weyrioh  (8  Neb.  174),  950. 
Derbyshire's  Estate,  In  re  (81  Pa.  St. 

18),"  755. 
Dermott  v.  Jones  (2  Wall.  1),  1105. 
Derosia  v.  Winona,  etc.  R.  Co.  (18 

Minn.  133),  1133. 
Derrick  v.  Pierce  (94  Ga.  466),  603. 
Derry  v.  Peek  (14  App.  Cas.  337),  856, 

863,  876,  878,  932. 
De  St.  Germain   v.  Wind  (3  Wash. 

Terr.  L89),  569. 
Desany  v.  Thorp  (70  Vt.  31),  599,  603, 

636. 
Des  Forges  v.  Pugh  (93  N.  C.  31),  892. 


TABLE    OF   OASES    CITED. 


XC1 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  IT,  §§  798-1850. 


Desha  v.  Pope  (6  Ala.  690),  51.  752. 
Desilver,  Estate  of  (5  Rawle,  110),  72, 

77. 
Detroit   Chamber    of  Commerce  v. 

Goodman  (110  Mich.  498),  137. 
Detroit  Heating  Co.  v.  Stevens  (16 

Utah,  177),  1387. 
Devane  v.  Fennell  (2  Ired.  36),  205, 

520,  523. 
Devaux  v.  Conolly  (8  C.  B.  640),  839, 

1850. 
Devine  v.  Edwards  (101  111.  138),  733, 

741,  839,  1184. 
Devine  v.  Edwards  (87  111.  177),  1850. 
Devlin  v.  Mayor  of  N.  Y.  (63  N.  Y.  8), 

1762. 
Devlin  v.  O'Neill  (6  Daly,  305),  601. 
Devlin  v.  Smith  (89  N.  Y.  470),  878. 
Dewes   Brewery  Co.  v.   Merritt  (82 

Mich.  198),  564,  588,  597,  599. 
Dewey  v.  Erie  Borough  (14  Pa.  St. 

211),  661,  662,  1384. 
Dewey  v.  Thrall  (13  Vt.  284).  965. 
Dewing  v.  Perdicaries  (96  U.  S.  193), 

1024. 
De  Witt  v.  Berry  (134  U.  S.  306),  1240, 

1254,  1259,  1339. 
De  Witt  v.  Van  Sickle  (29  N.  J.  Eq. 

209),  953. 
Dewitt  v.  Walton  (9  N.  Y.  571),  451. 
De  Wolf  v.  Gardner  (12  Cush.  19),  752, 

788. 
Dexter  v.  Hall  (15  Wall.  9),  72,  77. 
Dexter  v.  Norton  (47  N.  Y.  62),  199, 

513,  1100,  1103. 
Dexter  v.  Parkins  (22  111.  143),  960. 
Deyo  v.  Hammond  (102  Mich.  122), 

211,  1235. 
Deyoe  v.  Jamison  (33  Mich.  94),  606, 

628. 
Dial  v.  Crane  (10  Tex.  444),  804. 
Dias  v.  Chickering  (64  Md.  348),  165. 
Dibblee  v.  Sheldon  (10  Blatch.  178), 

908,  909. 
Dickens  v.  Williams  (2  B.  Mon.  374), 

1242. 


Dickenson  v.  Gapp  (8  Bing.  50),  1276. 
Dickey  v.  Waldo  (97  Mich.  255),  199, 

200. 
Dickinson  v.  Dickinson  (29  Conn.  600), 

328. 
Dickinson  v.  Dodds  (2  Ch.  Div.  463), 

252,  253,  257. 
Dickinson  v.  Follett  (1 M.  &  Rob.  299), 

1270. 
Dickinson  v.  Gay  (7  Allen,  29),  1320, 

1326,  1328. 
Dickinson  v.  Hall  (14  Pick.  217),  834. 
Dickinson  v.  King  (28  Vt.  378),  1424. 
Dickson  v.  Jordan  (11  Ired.  L.  166), 

1311,  1314. 
Dickson  v.  Thomas  (97  Pa.  St.  278), 

1031. 
Dickson  v.  Zizinia  (10  C.  B.  602),  1259. 
Diebold  Safe  Co.  v.  Holt  (4  Okl.  479), 

1183. 
Diebold  Safe  &  Lock  Co.  v.  Huston 

(55  Kan.  104),  1254,  1337,  1349. 
Diehl  v.  McCormick  (143  Pa.  St.  584), 

492. 
Diem  v.  Koblitz  (49  Ohio  St.  41),  1121, 

1472,  1539,  1611,  1626. 
Dierson   v.   Petersmeyer  ( Iowa, 

— ),  325,  358,  400. 
Dietz  v.  Sutcliffe  (80  Ky.  650),  1411. 
Diggs  v.  Denny  (86  Md.  116),  906. 
Dignan  v.  Spurr  (3  Wash.  309),  1389. 
Dike  v.  Reitlinger  (23  Hun,  241),  652, 

1223. 
Dilenbeck  v.  Rehse  (105  Iowa,  749), 

1459. 
Dill  v.  Bowen  (54  Ind.  204),  109. 
Dill  v.  Mumford  (19  Ind.  App.  609), 

1633. 
Dill  v.  O'Ferrell  (45  Ind.  268),  916. 
Dillman  v.  Nadlehoffer  (119  111.  567), 

880. 
Dillon  v.  Anderson  (43  N.  Y.  231), 

1702. 
Dillon  v.  Bowles  (77  Mo.  603),  130. 
Dil  worth  v.  Bradner  (85  Pa.  St.  238), 

875. 


xcn 


TABLE   OF   CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  793-1850. 


Dingle  v.  Hare  (7  C.  B.  245),  1281. 
Dingley  v.  Oler  (11  Fed.  R.  872),  1090. 
Dingley  v.  Oler  (117  U.  S.  490),  1087, 

1090,  1130,  1134. 
Dinker  v.  Potts  (90  Ga.  103),  892,  924. 
Dinney  v.  Johnson  (8  N.  Dak.  153), 

358. 
Disborough  v.  Neilson  (3  Johns.  Cas. 

81),  264,  1170. 
Disbrow  v.  Secor  (58  Conn.  35),  187. 
Dist.  of  Columbia  v.  Clephane  (110 

U.  S.  212),  1349. 
Ditman  v.  Cottrell  (125  Pa.  St.  606), 

580. 
Dittmar  v.  Norman  (118  Mass.  319),  46. 
Diversy  v.  Kellogg  (44  111.  114),  175, 

739,  1372. 
Divine  v.  McCormick  (50  Barb.  116), 

1356, 1357. 
Dixon,  Ex  parte  (4  Ch.  Div.  133),  1451. 
Dixon  v.  Baldwin  (5  East,  175),  1559, 

1577. 
Dixon  v.  Blondin  (58  Vt.  689),  565, 649. 
Dixon  v.  Fletcher  (3  M.  &  W.  145), 

746,  1158, 1161. 
Dixon  v.  Hill  (5. Mich.  404),  924,  952. 
Dixon  v.  Yates  (5  B.  &  Ad.  313),  281, 

484,  493,  1119,  1129,  1485,  1499, 1502, 

1602. 
Doane  v.  Dunham  (65  111.  512),  1140, 

1375,  1393,  1402. 
Doane  v.  Lockwood  (115  111.  490),  148, 

915. 
Dobell  v.  Hutchinson  (3  Ad.  &  E.  355), 

426,  428. 
Dodd  v.  Bowles  (3  Wash.  Terr.  383), 

588,  597. 
Dodd  v.  St.  John  (22  Oreg.  250),  139. 
Dodge  v.  Emerson   (131  Mass.  467), 

1434 
Dodge  v.  Meyer  (61  Cal.  405),  1194. 
Dodsley  v.  Varley  (12  Ad.  &  El.  632), 

1471. 
Dodson  v.  Harris  (10  Ala.  566),  1058. 
Dodson  v.  Wentworth  (4  Man.  &  G. 

1080),  1577. 


Dodsworth  v.  Hercules  Iron  Works 

(31  U.  S.  App.  292),  1387. 
Doe  v.  Knight  (5  B.  &  C.  71),  259. 
Doe  v.  Oliver  (2  Sm.  L.  C.  803),  845. 
Dolan  v.  Green  (110  Mass.  322),  739. 
Dolan  v.  Van  Demark  (35  Kan.  304), 

963. 
Dole  v.  Olmstead  (36  111.  150),  642. 
Dole  v.  Stimpson  (21  Pick.  384),  386. 
Domestic  Sewing  Mach.  Co.  v.  An- 
derson (23  Minn.  57),  547. 
Donaldson  v.  Farwell  (93  U.  S.  631), 

901,  924. 
Donaldson  v.  Rouzan  (8  Mart.,  N.  S., 

163),  8. 
Donath  v.  Broomhead  (7  Pa.  St.  301), 

1586. 
Donnell  v.  Hearn   (17  N.  Y.   Wkly. 

Dig.  463),  305. 
Donohue  v.  Woodbury  (6  Cush.  148), 

1420. 
Donovan  v.  Daiber  ( —  Mich.  — ), 

1031,  1032. 
Donovan  v.  Gathe  (3  Colo.  App.  151), 

964. 
Donovan  v.  Willson  (26  Barb.   138), 

305. 
Doran  v.  Eaton  (40  Minn.  35),  1843. 
Doremus  v.  Howard  (23  N.  J.  L.  390), 

1671. 

Dorman  v.  Soto  ( Cal.  — ),  964. 

Dorman  v.  Weakley  ( Tenn.  — ), 

906. 
Dorntee  Casket  Co.  v.  Gunnison  (69 

N.  H.  297),  650. 
Dorrance  v.  Dean  (106  N.  Y.  203),  169. 
Doty  v.  Knox  County  Bank  (16  Ohio 

St.  133),  1004." 
Doty  v.  Wilder  (15  111.  407),  461. 
Doubleday  v.  Kress  (50  N.   Y.  410), 

1453,  1459. 
Doucet  v.  Richardson  (67  N.  H.  186), 

964. 
Dougherty  v.  Cooper  (77  Mo.  528),  952. 
Doughty  v.  Manhattan  Brass  Co.  (101 

N.  Y.  644),  428. 


TABLE    OF    CASES    CITED. 


XC111 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Douglas  v.  People's  Bank  (86  Ky.  176), 

788. 
Douglas  v.  Shu m way  (13  Gray,  498), 

336,  1492. 
Douglass  v.  Moses  (89  Iowa,  40),  1248, 

1817,  1818. 
Douglass  v.  Spears  (2  N.  &  McC.  207), 

425,  449. 
Douglass  Axe  Mfg.  Co.  v.  Gardner 

(10  Cush.  88),  1807,  1808. 
Dounce  v.  Dow  (57  N.  Y.  10),  1222, 

1237,  1314,  1395. 
Dow  v.  Sanborn  (3  Allen,  181),  901. 
Dow  v.  Worthen  (37  Vt.  108),  415. 
Dowdell  v.  Empire  Furn.  Co.  (84  Ala. 

316),  620. 
Dowling  v.   Betjeraan  (2  Johns.  & 

Hem.  544),  1723. 
Dowling  v.  Lawrence  (58  Wis.  282), 

869,  935. 
Dowling  v.  McKenney  (124  Mass.  478), 

16. 
Downer  v.  Thompson   (6    Hill,  208), 

1159. 
Downer  v.  Thompson  (2    Hill,  137), 

746. 
Downing  v.  Dearborn  (77  Me.  457), 

1344. 
Downs  v.  Marsh  (29  Conn.  409),  746, 

•1161. 
Downs  v.  Ross  (23  Wend.  270),  293, 

305,  307,  324. 
Dows  v.  Greene  (24  N.  Y.  638),  166. 
Dows  v.  Kidder  (84  N.  Y.  121),  543, 

554,  890. 
Dows  v.  Milwaukee  Bank  (91  U.  S. 

618),  782. 
Dows  v.  Nat.  Exch.  Bank  (91  U.  S. 

618),  774,  779,  792. 
Dozier  v.  Matson  (94  Mo.  328),  955. 
Drain  v.  Doggett  (41  Iowa,  682).  1455. 
Drake  v.  Seaman  (97  N.  Y.  230),  426. 
Drake  v.  Vorse  (52  Iowa,  417),  263. 
Drake  v.  Wells  (11  Allen,  141),  336, 

626,  1191. 
Draper  v.  Jones  (11  Barb.  263),  478. 


Draper  v.  Rice  (56  Iowa,  114),  1461. 
Dressel  v.  Jordan  (104  Mass.  407),  425, 

450. 
Dressel  v.  Lonsdale  (46  111.  App.  454), 

138. 
Dresser  v.  Ainsworth  (9  Barb.  619), 

1304, 1797. 
Dresser  Mfg.  Co.  v.  Waterston  (3  Met. 

9),  549. 
Drew  v.  Beall  (62  111.  167),  1843. 
Drew  v.  Edmunds  (60  Vt.  401),  1235, 

1237,  1272,  1334. 
Drew  v.  Pedlar  (87  Cal.  443),  629. 
Drews  v.  Logging  Co.  (53  Minn.  199), 

1265. 
Driggs  v.  Norwood  (50  Ark.  42),  957. 
Drummond  v.  Van  Ingen  (12  App. 

Cas.  284),  1329, 1331,  1340, 1342, 1344, 

1346,  1377. 
Drurey  v.  Hervey  (126  Mass.  519),  626, 

627. 
Drury  v.  Defontaine  (1  Taunt.  131), 

1045,  1052. 
Drury  v.  Wilson  (38  N.  Y.  S.  538),  964. 
Drury   v.  Young  (58  Md.   546),  428, 

451. 
Dube  v.  Beaudry  (150  Mass.  448),  118. 
Dubois  v.  Spinks  (114  Cal.  289),  964. 
Dubose  v.  Wheddon  (4  McCord,  221), 

124. 
Duchman  v.  Hagerty  (6  Watts,  65), 

1004 
Dudley  v.  Abner  (52  Ala.  572),  599. 
Dudley  v.  Mallery  (4  Ga.  52).  1719. 
Duff  v.  Budd  (3  Brod.  &  B.  177),  887. 
Duff  v.  Williams  (85  Pa.  St.  490),  875. 
Duffield  v.  Scott  (3  D.  &  E.  210),  1798. 
Dufour  v.  Camfranc  (11  Mart.  610  ,  8. 
Duffus  v.  Furnace  Co.  (15  Misc.  169), 

603. 
Dugan  v.  Anderson  (36  Md.  567),  1089, 

1090. 
Dugan  v.  Gittings  (3  Gill,  138),  955. 
Dugan  v.  Nichols  (125  Mass.  43),  961. 
Duggan  v.  Pacific  Boom  Co.  (6  Wash. 

593),  1425. 


XC1V 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Duke  v.  Shackleford  (56  Miss.  553), 

629. 
Duke  of  Somerset  v.  Cookson  (3  P. 

Wms.  390),  1719. 
Dulaney  v.  Green  (4  Harr.  285),  82. 
Dulaney  v.  Rogers  (64  Mo.  201),  875. 
Dunnage  v.  White  (1  Wils.  Cli.  67),  73. 
Dunnahoe  v.  Williams  (24  Ark.  264), 

178. 
Dunbar  v.  Johnson  (108  Mass.  519), 

1004. 
Dunbar  v.  Locke  (62  N.  H.  442),  1028. 
Dunbar  v.  Marden  (13  N.  H.  311),  834. 
Dunbar  v.  Rawles  (28  Ind.  225),  599. 
Duncan  v.  Cashin  (L.  R.  10  C.  P.  554), 

135. 
Duncan  v.  Topham  (8  Com.  Bench, 

225),  251, 1134. 
Duncomb  v.  Tickridge   (Aleyn,  94), 

126. 
Duncuft  v.  Albrecht  (12  Sim.  189), 

329. 
Dunkart  v.  Rineheart  (89  N.  C.  354), 

702. 
Dunkirk  Colliery  Co.  v.  Lever  (9  Ch. 

D.  20),  1770. 
Dunks  v.  Fuller  (32  Mich.  242),  909. 
Dunlap  v.  Berry  (5  111.  327),  714. 
Dunlap  v.  Bournonville  (26  Pa.  St. 

72).  966. 
Dunlap  v.  Gleason  (16  Mich.  158),  599. 
Dunlap  v.   Hawkins  (59  N.  Y.  342), 

972. 
Dunlop  v.  Higgins  (1  H.  L.  Cas.  387), 

244,  245,  247,  251,  252,  25& 
Dunlop  v.  Lambert  (6  C.  &  F.  600), 

393,  733,  711,  743,  71 1.  787,  1181, 149ft 
Dunman  v.  Strother  (1  Tex.  89),  1442. 
Dunmore  v.  Alexander   (9  Shaw  cV' 

Dunlop,  190),  362. 
Dunn  v.  Bell  (85  Tenn.  581),  1031. 
Dunn  v.  State  (82  Ga.  27),  1029. 
Dunn  v.  Swan  |  115  Mich.  409),  200. 
Dun  ton  v.  Brown  (31  Mich.  182),  107. 
Duplanty  v.  Stokes  (103  Mich.  630), 

1374. 


Duplex  Safety  Boiler  Co.  v.  Garden 

(101  N.  Y.  387),  668. 
Durfee  v.  Jones  (11  R.  L  588),  273,  274. 
Durgy  Cement  Co.  v.  O'Brien    (123 

Mass.  12),  1537,  1539,  1571. 
Durgin  v.  Dyer  (68  Me.  143),  1045, 1050. 
Durkee  v.  Moses  (67  N.  H.  115),  1028. 
Durkee  v.  Vermont  Cent.  R.  R.  Co. 

(29  Vt.  127),  247. 
Durr  v.  Hervey  (44  Ark.  301),  1507. 
Durr  v.  Replogle  (167  Pa.  St.  347),  620. 
Durrell  v.  Evans  (6  H.  &  N.  660),  460. 
Durrell  v.  Evans  (1  H  &  C.  174),  451, 

460,  462. 
Durst  v.  Burton  (47  N.  Y.  167),  1693. 
Dushane  v.  Benedict  (120  U.  S.  630), 

1345. 
Dustan  v.  Mc  Andrew  (44  N.  Y.  72), 

1618,  1643,  1677,  1678,  1682,  1693. 
Dustin  v.  Cowdry  (23  Vt.  6 16),  907. 
Dutcher  v.  Beckwith  (45  111.  460),  1445. 
Dutcher   v.  Wright  (94  U.   S.  553), 

1540. 
Dutchess  Co.  v.  Harding  (49  N.  Y.  321), 

1392,  1397. 
Dutton  v.  Solomonson  (3  B.  &  P.  582), 

736,  740,  787,  1181. 
Duval  v.  Mowry  (6  R  I.  479),  915,  919. 
D wiggins  v.  Clark  (94  Ind.  49),  1633. 
D wight  v.  Eckert  (117  Pa.  St.  490), 

1127,  1130. 
Dwight  v.  Elmira,  etc.  R,   Co.  (132 

N.  Y.  199),  1828. 
Dwinel  v.  Howard  (30  Me.  258),  1084, 

1148. 
Dyokman  v.  Valiente  (43  Barb.  131), 

755. 
Dyer  v.  Great  Northern  Ry.  Co.  (51 

Minn.  345),  736. 
Dyer  v.  Homer  (22  Pick.  253),  836, 947. 
Dyer  v.  Taylor  (50  Ark.  314),  953. 
Dykers  v.  Townsend  (24  N.  Y.  57),  431. 
Eadie   v.   Ashbaugh    (44   Iowa,  519), 

1288. 
Eagan  Co.  v.  Johnson  (82  Ala  233), 
|     1395. 


TABLE    01*    CASES    CITED. 


xcv 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Eagle  v.  Eichelberger  (6  Watts,  28), 

960,  988. 
Eagle  Bank  v.  Smith  (5  Conn.  71), 

1422. 
Eagle    Iron    Works  v.   Des  Moines 

Suburban  Ry.  Co.  (101  Iowa,  289), 

1805,  1819,  1837. 
Earl  of  Glengal  v.  Barnard  (1  Keen, 

769),  460. 
Earle  v.  Coburn  (180  Mass.  596),  1475. 
Earle  v.  Peale  (1  Salk.  386),  132. 
Earle  v.  Reed  (10  Mete.  387),  122, 123, 

124. 
Earley  v.  Garrett  (9  B.  &  C.  928),  1311. 
East  Tenn.  R.  Co.  v.  Hunt  (15  Lea, 

261),  1475. 
Eastern    Granite    Co.   v.   Heira    (89 

Iowa,  698),  1106. 
Eastman  v.  Avery  (23  Me.  248),  39. 
Eaton  v.   Avery  (83  N.  Y.  31),  878, 

895. 
Eaton  v.  Cook  (32  Vt.  58),  1532,  1562, 

1563,  1604. 
Eaton  v.  Davidson  (46  Ohio  St.  355), 

924. 
Eaton  v.  Eaton  (37  N.  J.  L.  108),  72, 

74,  77. 
Eaton  v.  Kegan  (114  Mass.  433),  1050. 
Eaton  v.  Munroe  (52  Me.  63),  636,  638. 
Eaves  v.  Estes  (10  Kan.  314),  647. 
Eberle  v.  Mehrbach  (55  N.  Y.  682), 

1052. 
Eberstadt  v.  Jones  (19  Tex.  App.  480), 

1046. 
Echols  v.  New  Orleans,  etc.  R.  Co.  (52 

Miss.  610),  1131. 
Echols  v.  Railroad  Co.  (52  Miss.  610), 

1132. 
Eckenrode  v.  Chemical  Co.  (55  Md. 

51).  1089,  1092. 
Eckert  v.  Schoch  (155  Pa.  St.  530), 

242,  246. 
Eckstein  v.  Downing  (64  N.  H.  248), 

1718,  17-27. 
Eclipse  Wind  Mill  Co.  v.  Thornton 

(46  Iowa,  181),  1451. 


Edan  v.  Dudfield  (1  Q.  B.  302),  389, 

1490. 
Eddy  v.  Capron  (4  R.  I.  394),  1042. 
Eddy  v.  Clement  (38  Vt.  486',  1103. 
Edelhoff  v.  Horner  Mfg.  Co.  (86  Md. 

595),  905. 
Edelman  v.  Latshaw  (180  Pa.  St.  419), 

899. 
Eden  v.  Parkinson  (2  Doug.  733),  1266. 
Edgar  v.  Boies  (11  Serg.  &  R.  445), 

1440. 
Edgar  v.  Breck  (172  Mass.  581),  401, 

1334,  1827. 
Edgecombe  v.  Rodd  (5  East,  294),  1466. 
Edgerly  v.  Shaw  (25  N.  H.  512),  96, 

121. 
Edgerton  v.  Hodge  (41  Vt.  676),  418. 
Edgewood  Distilling  Co.  v.  Shannon 

(60  Ark.  133),  564. 
Edgington  v.  Fitzmaurice  (29  Ch.  Div. 

459),  876. 
Edick  v.  Crini  (10  Barb.  445),  1302. 
Edison  Gen'l  Elec.  Co.  v.  Walter  (10 

Wash.  14),  564. 
Edmond  v.  Caldwell  (15  Mo.  340),  1424. 
Edmunds  v.  Merchants'  Desp.  Trans. 

Co.  (135  Mass.  283),  149,  267,  269, 

887. 
Edmunds  v.  Mister  (58  Miss.  765),  121. 
Edrington  v.  Rogers  (15  Tex.  188),  953. 
Edson  v.  Hudson  (83  Mich.  450),  906, 

923,  924. 
Edward  Hines  Lumber  Co.  v.  Alley 

(43  IT.  S.  App.  169),  1087,  1090. 
Edwards'  Appeal  (105  Pa.  St.  103),  580. 
Edwards  v.  Brewer  (2  Mees.  &  W. 

375),  1577,  1604. 
Edwards  v.  Dickson  (66  Tex.  613),  960. 
Edwards  v.  Dillon  (147  111.  14),  1344, 

1354. 
Edwards  v.  Grand  Trunk  Ry.  Co.  (54 

Me.  105),  311. 
Edwards  v.  Grand  Trunk  Ry.  Co.  (48 

Ma  379\  293,  311,  324. 
Edwards  v.  Harben  (2  T.  R.  587),  9C). 
Edwards  v.  Marcy  (2  Allen,  486),  1244. 


XCV1 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Edwards  v.  Meadows    (71    Ala.    42), 

1193. 
Edwards  v.  Railway  Co.  (54  Me.  105), 

382,  386,  1665. 
Edwards  v.   Randle    (63  Ark.   318), 

1042. 
Edwards  v.  Sanborn  (6  Mich.  348), 

1790. 
Egan  v.  Barclay  Fibre  Co.  (61  Fed.  R. 

527),  1134. 
Eggleston  v.  Wagner  (46  Mich.  610), 

228,  234,  437. 
Eichelbarger  v.  McCauley  (5  H.  &  J. 

213),  307,  323. 
Eicholtz  v.  Bannister  (17   Com.   B. 

708),  838,  1301,  1793,  1849. 
Eidson  v.  Hedger  (38  Mo.  App.  52), 

603. 
Eighmie  v.  Taylor  (98  N.  Y.  288),  1254, 

'1255. 
Eiland  v.  Radford  (7  Ala.  724),  688, 

692. 
Eisenberg  v.  Nichols  (22    Wash.  70), 

603. 
Eland  v.  Karr  (1  East,  375),  1438. 
Elbinger  Actien-Gesellschaft  v.  Arm- 
strong (L.  R.  9  Q.  B.  473),  1766, 1770. 
Eldridge  v.  Benson  (7  Cush.  483),  48. 
Electric  Lighting  Co.  v.  Rust  (117 

Ala.  680),  202. 
Electric  Service  Co.  v.  Gill-Alexan- 
der Co.  (125  Mo.  140),  1718. 
Electro  Dynamic  Co.  v.  The  Electron 

(74  Fed.  R.  689),  1304. 
Elerick  v.  Reid  (54  Kan.  579),  937. 
Elgee  Cotton  Cases,  The  (22  Wall. 
180),  508,  509,  513,  514,  520,  531,  532. 
Eliason  v.  Henshaw  (4  Wheat.  225), 

228,  229,  233,  239,  244,  249. 
El  kins  v.  Kenyon  (34  Wis.  93),  1235. 
El  kins  v.  McKean  (79  Pa.  St.  493),  878. 
Klkins  v.  Parkhurst  (17  Vt.  105),  1050. 
Ellen  v.  Topp  (6  Exch.  424),  861,  1106. 
Ellershaw   v.   Magniac   (6   Ex.  570), 

7:;.-),  774,  779.  784,  787. 
Ellis  v.  Allen  (80  Ala.  515),  144. 


Ellis  v.  Andrews  (56  N.  Y.  83),  893, 

936. 
Ellis  v.  Bonner  (80  Tex.  198),  761. 
Ellis  v.  Denver,  etc.  Ry.  Co.  (7  Colo. 

App.  350),  318. 
Ellis  v.  Gosney  (7  J.  J.  Marsh.  109), 

1794. 
Ellis  v.  Hammond  (57  Ga.  179),  1053. 
Ellis  v.  Hilton  (78  Mich.  150),  1826. 
Ellis  v.  Holland  (98  Ga.  154),  597. 
Ellis  v.  Hunt  (3  T.  R  464),  1577, 1601. 
Ellis  v.  Mathews  (19  Tex.  390),  64,  65. 
Ellis  v.  Mortimer  (1  Bos.  &  P.  N.  R. 

257),  660. 
Ellis  v.  Roche  (73  111.  280),  746. 
Ellis  v.  Thompson  (3  Mees.  &  Wels. 

445),  1129. 
Elliot  v.  Hall  (2  Idaho,  1142),  950. 
Elliott  v.  Bradley  (23  Vt.  217),  51. 
Elliott  v.  Cox  (48  Ga.  39),  51,  752. 
Elliott  v.  Dean  (Cab.  &  El.  283),  428. 
Elliott  v.  Edwards  (35  N.  J.  L.  265), 

755. 
Elliott  v.  Puget  Sound,  etc.  Co.  (22 

Wash.  220),  1836. 
Elliott  v.  Von  Glehn  (13  Q.  B.  632), 

861. 
Ellithorpe  Air  Brake  Co.  v.  Sire  (41 

Fed.  R.  662),  1106. 
Elmer  v.  Pennel  (40  Me.  430),  834. 
Elmore  v.  Fitzpatrick  (56  Ala.  400), 

636. 
Elmore  v.  Kearney  (23  La.  Ann.  479), 

749. 
Elmore  v.  Kingscote  (5  B.  &  C.  583), 

438,  448. 
Elmore  v.  Stone  (1  Taunt.  457),  385, 

386,  964. 
Elphick  v.  Barnes  (5  C.  P.  Div.  321), 

658,  677. 
Elston  v.  Jasper  (45  Tex.   409),  69, 

72. 
El  wood  v.  May  (24  Neb.  375),  955. 
Elwood    v.   McDill  (105  Iowa,    437), 

1807. 
Ely  v.  James  (123  Mass.  36),  1424. 


TABLE    OF    CASES    CITED. 


XCV11 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Ely  v.  Webster  (102  Mass.  304),  1018. 
Embrey  v.  Jemison  (131  U.  S.  336), 

1039. 
Emma  Silver  Mining  Co.   Lim.    v. 

Emma  Silver  Min.  Co.  of  N.  Y.  (7 

Fed.  R.  401),  910. 
Emerson  v.  European,  etc.  Ry.  Co.  (G7 

Me.  387),  199,  200,  202. 
Emerson  v.  McNamara  (41  Me.  565), 

908. 
Emerson  v.  Steel  Co.  (100  Mich.  127), 

1411. 
Emerine  v.  O'Brien  (36  Ohio  St.  491), 

1429. 
Emery's  Sons  v.  Irving  Nat.  Bank  (25 

Ohio  St.  360),  779,  788,  790. 
Emmersonv.  Heelis(2  Taunt.  38),  460, 

461. 
Emonds  v.  Termehr  (60  Iowa,  92),  954. 
Empire  State  Type  Foundry  Co.  v. 

Grant  (114  N.  Y.  40),  541,  546,  547, 

549. 
Empire  State  Phosphate  Co.  v.  Hel- 
ler (61  Fed.  R.  280),  1130. 
Ender  v.  Scott  (11  111.  35),  1237. 
Endsley  v.  Johns  (120  111.  460),  875, 

877. 
Enger  v.  Dawley  (62  Vt.  164),  1237, 

1240. 
England  v.  Adams  (157  Mass.  449), 

1411. 
England  v.  Forbes  (7  Houst.  301),  483, 

485,  549,  892. 
Englebert  v.  Troxell  (40  Neb.  195), 

109,  132. 
Englehart  v.  Clanton  (83  Ala.  336), 

1245. 
English  v.  Spokane  Commission  Co. 

(15  U.  S.  App  218),  1265,  1298,  1340, 

1393,  1395. 
English  v.  Spokane  Comm.  Co.  (48 

Fed.  R.  196),  1335,  1393, 1395. 
English  v.  Spokane  Comm.  Co.  (57 

Fed.  R.  451),  1393. 
Engeman  v.  Taylor  (46  W.  Va.  669), 

932. 


Enlow  v.  Klein  (79  Pa.  St.  488),  32, 

580,  588,  600. 

Ennis   v.  Borner  (40  C.  C.  A.  249), 
868. 

Ennis  v.  Buckeye  Pub.  Co.  (44  Minn. 

105),  1709. 
Ensley  Lumber  Co.  v.  Lewis  (121  Ala. 

94),  599. 
Epperson  v.  Nugent  (57  Miss.  45),  130, 

132. 
Equitable  Foundry  Co.  v.  Hersee  (103 

N.  Y.  25),  908,  909. 
Equitable  Gas  L.  Co.  v.  Baltimore 

Coal  Tar  &  Mfg.  Co.  (63  Md.  285), 

1721. 
Erdall  v.  Atwood  (79  Wis.  1),  955. 
Erickson  v.  Fisher  (51  Minn.  300),  1841. 
Erie  City  Iron  Works  v.  Barber  (106 

Pa.  St.  125),  875. 
Ernst  v.  Crosby  (140  N.  Y.  364),  1022. 
Erskine  v.   Swanson  (45  Neb.   767), 

1235,  1237,  1238. 
Erskine  v.  Plummer  (7  Me.  447\  337. 
Erwin  v.  Arthur  (61  Mo.  386),  491. 
Erwin  v.  Harris  (87  Ga.  333),  779. 
Erwin  v.  Maxwell  (3  Murphey,  241), 

1237,  1243,  1268,  1311. 
Erwin  v.  Torrey  (8  Martin,  90),  1479. 
Estabrook  v.  Swett  (116  Mass.  303), 

915. 
Estate  of  Davis  (5  Whart,  530),  1423. 
Estep  v.  Fenton  (66  111.  467),  1393. 
Esterly  v.  Campbell  (44  Mo.  App.  621), 

670. 
Esterly  Harvesting  Mach.  Co.  v.  Berg 

(52  Neb.  147),  871. 
Estey  v.  Birnbaum  (9  S.  Dak.  174), 

1425. 
Estey  v.  Truvel  (25  Mo.   App.  238), 

1571. 
Etchepane  v.  Aguirre  (91  Cal.  288), 

960,  964. 
Etheridge  v.  Vernoy  (70  N.  C.  713), 

880. 
Eureka  Co.  v.  Edwards  (71  Ala.  248), 

109. 


XCV111 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Eureka  Fertilizer  Co.  v.  Baltimore 

Copper  Rolling  Co.  (78  Md.  179), 

1255. 
Eureka  Iron  Works  v.  Bresnahan  (66 

Mich.  489),  953. 
Evans  v.  Collins  (5  Q.  B.  804),  876. 
Evans  v.  Dravo  (24  Pa.  St.  62),  947. 
Evans  v.  Edmonds  (13  C.  B.  777),  876, 

1223. 
Evans  v.  Gerry  (174  111.  595),  871,  893, 

936. 
Evans  v.  Scott  (89  Pa.  St.  136),  960, 

964,  988. 
Evansville,  etc.  R.  Co.  v.  Erwin  (84 

Ind.  457),  543,  554,  1660. 
Everett  v.  Hall  (67  Me.  498),  556,  588, 

592,  597,  630. 
Everett  v.  Parks  (62  Barb.  9),  738. 
Everett  v.  Taylor  (14  Utah,  242),  964, 

1132. 
Everingham  v.  Meighan  (55  Wis.  354), 

1031. 
Eversman  v.  Clements  (6  Colo.  App. 

224),  964. 
Everson  v.  Carpenter  (17  Wend.  419), 

121. 
Evert  v.  Kleimenhagen  (6  S.  Dak. 

221),  1055. 
Ewing  v.  French  (1  Blackf.  353),  25. 
Ewins    v.   Gordon    (49    N.   H.    444), 

263. 
Exhaust  Ventilator  Co.  v.  Chicago, 

etc.  R.  Co.  (66  Wis.  218),  667,  668. 
Exhaust  Ventilator  Co.  v.  Railroad 

Co.  (6  Wis.  454),  670,  1402. 
Eyers  v.  Had  den  (70  Fed.   R.   648), 

1242,  1807. 
Eyre  v.  Eyre  (19  N.  J.  Eq.  42),  947. 
Ezell  v.  Franklin  (2  Sneed,  236),  1281, 

1294. 
Ezzard  v.  Frick  (76  Ga.  512),  602. 
Fahey  v.  Esterly  Mach.  Co.  (3  N.  Dak. 

220),  1384,  1386. 
Faikney  v.  Reynous  (4  Burr.  2069), 

1012,  1015. 
Fail  v.  McRee  (36  Ala.  61),  1712. 


Fairbank   Canning    Co.   v.   Metzger 

(118  N.  Y.  260),  1222,  1235,  1237, 1335, 

1356,  1358,  1392,  1393,  1395. 
Fairbanks   v.   Eureka    Co.    (67   Ala. 

109  ,  599. 
Fairbanks  v.  Malloy  (16  111.  App.  277), 

629. 
Fairbanks  v.  Phelps  (22  Pick.  535), 

588,  610. 
Fairchild  v.  McMahon  (139  N.  Y.  290), 

893,  937. 
Fairfax  v.  N.  Y.  Cent.  R  Co.  (73  N.  Y. 

167),  1743. 
Fairfield  v.  Madison  Mfg.  Co.  (38  Wis. 

346),  658,  660,  1155,  1208. 
Fairfield  Bridge  Co.  v.  Nye  (60  Me. 

372),  960. 
Fairmount  Glass  Works  v.  Gunden- 

Martin  Woodenware  Co.  ( —  Ky. 

— ),  224. 
Fairmount  Ry.  Co.  v.  Stuller  (154  Pa. 

St.  375),  122. 
Faisst  v.  Waldo  (57  Ark.  270),  605. 
Fait    &    Slagle    Co.   v.   Truxton    (1 

Pennew.  24),  905,  924. 
Falconer  v.  Smith  (18  Pa.  St.  130), 

1248,  1844 
Falk,  Ex  parte  (14  Ch.  Div.  446),  1570, 

1583. 
Falk  v.  Fletcher  (18  C.  B.,  N.  S..  403), 

787. 
Fallon  v.  Murray  (16  Mo.  168),  1798. 
Falls  v.  Gaither  (9  Port.  614),  247. 
Falvey  v.  Richmond  (87  Ga.  99),  1181. 
Farebrother  v.  Simmons  (5  B.  &  Aid. 

333),  461,  462. 
Fareira  v.  Gabell  (89  Pa.  St.  89),  1032. 
Fargo  Gaslight  Co.  v.  Fargo  Gas  Co. 

(4  N.  Dak.  218),  1841,  1843. 
Farina  v.  Home  (16  M.  &  W.  119), 

387,  524,  1194,  1493. 
Farley  v.  Lincoln  (51  N.  H.  577;,  148, 

924. 
Farley  v.  Parker  (6  Oreg.  105),  72. 
Farlow  v.  Ellis  (15  Gray,  229),  549, 

551,  552. 


TABLE    OF    CASKS   CITED. 


XC1X 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Farmeloe  v.  Bain  (1  Com.  PI.  Div. 

445),  1504. 
Farmer  v.  Gray  (16  Neb.  401),  401. 
Farmer  v.  Robinson  (2  Camp.  339), 

470. 
Farmers'  Nat.  Bank  v.  Atkinson  (74 

N.  Y.  587),  169. 
Farmers',   etc.   Bank    v.   Logan    (74 

N.  Y.  568),  776,  780. 
Farmers'   Phosphate  Co.  v.  Gill  (69 

Md.  537),  492,  519,  740. 
Farmers'    Stock-Breeding    Ass'n    v. 

Scott  (53  Kan.  534),  1247,  1254. 
Farmington  v.  Jones  (36  N.  H.  271), 

186. 
Farnswoith  v.  Duffner  (142  U.  S.  43), 

879. 
Fa  mum  v.  Pitcher  (151  Mass.  470), 

1085,  1194 
Farquhar  v.  McAlevy  1 142  Pa  St.  233), 

569,  580,  581,  600. 
Farr  v.  Sims  (Rich.  Eq.  Cas.  122),  945. 
Farr  v.  Stevens  (26  Vt.  299),  1424 
Farr  v.  Sumner  (12  Vt.  32),  109. 
Farr  v.  Swigart  (13  Utah,  150),  1132. 
Farrar  v.  Churchill  (135  U.  S.  247), 

879. 
Farrar  v.   Peterson   (52    Iowa,  420), 

1288. 
Farrell  v.  Richmond,  etc.  R.  Co.  (102 

N.  C.  390),  1542,  1571,  1582, 
Farrington  v.  Putnam  (90  Me.  405), 

142. 
Farrington  v.  Smith  (77  Mich.  550), 

1380,  1382. 
Farrow  v.  Andrews  (69  Ala.  96),  1245. 
Farrow  v.  Cochran  (72  Me.  309),  1805. 
Farwell  v.  Hanchett  (120  111.  573),  915, 

928. 
Farwell  v.  Kloman  (45  Neb.  424),  927. 
Farwell  v.  Myers  (59  Mich.  179),  909. 
Farwell  v.  Rogers  (4  Cush.  460),  1136. 
Farwell  v.  Solomon  (170  Mass.  457), 

1092. 
Faulds  v.  Yates  (57  111.  416),  208. 
Faulkner  v.  Klamp  (16  Neb.  174),  918. 


Fawcett  v.  Osborn  (32  111.  411),  269, 

923,  1302. 
Fay  v.  Burdett  (81  Ind.  433..  72,  73, 

74,  77. 
Fay  v.  Oliver  (20  Vt.  118),  914. 
Fay  v.  Richmond  (43  Vt.  25),  1281. 
Fay  v.  Wheeler  (44  Vt.  292),  328. 
Fechheimer  v.  Baum  (37  Fed.  R.  167), 

878,  893,  895. 
Feineman   v.    Sachs   (33   Kan.   621), 

1013,  1019,  1027. 
Feise  v.  Wray  (3  East,  93),  1530, 1532, 

1604 

Feldman  v.  Shea  (—  Idaho, ),  188. 

Felker  v.  Emerson  (16  Vt,  653),  178. 
Fell  v.  Muller  (78  Ind.  507),  1633. 
Fell  v.  Newberry  (106  Mich.  542),  1709. 
Fellows  v.  Northrup  (39  N.  Y.  117), 

1459. 
Fells  v.  Read  (3  Ves.  70),  1719. 
Felsenthal  v.  Hawks  (50  Minn.  178), 

1394. 
Felthouse  v.  Brindley  (11  C.  B.,  N.  S., 

869),  234,  238. 
Fenelon  v.  Hogaboom  (31  Wis.  172), 

543. 
Fenkhausen  v.  Fellows  (20  Nev.  312). 

1542. 
Fennell  v.  Ridler  (5  Barn.  &  Cr.  406), 

1056. 
Fenton  v.  Braden  (2  Cranch,  550),  207. 
Fenton  v.  Ham  (35  Mo.  409),  947. 
Fenton  v.  White  (1  South.  100),  124. 
Ferdon  v.  Cunningham  (20  How.  Pr. 

154),  1051. 
Ferguson  v.  Carrington  (9  B.  &  C.  59), 

912,  1411. 
Ferguson  v.  Clifford  (37  N.  H.  86),  542, 

543,  554,  649. 
Ferguson  v.  Hosier  (58  Ind.  438),  1395. 
Ferguson  v.  Northern  Bank  of  Ken- 
tucky (14  Bush,  555),  702,  714. 
Ferguson  v.  Wilson  ( —  Mich.  — ), 

202. 
Ferrier  v.  Storer  (63  Iowa,  484),  244 

247. 


TABLE   OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Ferris  v.  Spooner  (102  N.  Y.  10),  1089. 
Fessenden  v.  Mussey  (11  Cush.  127), 

434,  451,  456. 
Fetrow  v.  Wiseman  (40  Ind.  148),  109. 
Fetti  place  v.  Gorges  (1  Ves.  Jr.  46), 

135. 
Fettyplace  v.  Dutch  (13  Pick.  388), 

788. 
Feurt  v.  Rowell  (62  Mo.  524),  649. 
Fickett  v.  Swift  (41  Me.  65),  311. 
Fiegel  v.  Latour  (81 J  Pa.  St.  448),  1831. 
Field  v.  Lucas  (21  Ga.  447),  70. 
Field  v.  Mayor  (6  N.  Y.  179),  200. 
Field  v.  Morse  (54  Neb.  789),  875. 
Field  v.  Runk  (22  N.  J.  L.  525),  1124. 
Fields  v.  Williams  (91  Ala.  502),  588. 

592. 
Fi  field  v.  Elmer  (25  Mich.  48),  599. 
Figge  v.  Hill  (61  Iowa,  430),  1235, 1238, 

1244. 
Filkins  v.  Whyland  (24  Barb.   379), 

1255. 
Filley  v.  Pope  (115  U.   S.   213),  810, 

1138,  1139,  1155,  1208. 
Filley  v.  Walker  (28  Neb.  506),  1106. 
Finch  v.  Barclay  (87  Ga.  393),  1050. 
Finch  v.  Gregg  (126  N.  C.  176),  1816. 
Finch  v.  Mansfield  (99  Mass.  89),  739, 

1018,  1449. 
Finclley  v.  Cooley  (1  Blackf.  262),  947. 
Findley  v.  Deal  (69  Ga.  359),  578. 
Fine   v.   Hornsby  (2   Mo.   App.   61), 

331. 
Finlay  v.   Ludden  &   Bates  South. 

Music  House  (105  Ga.  264),  625. 
Finlayson  v.  Finlayson  (17  Oreg.  347), 

880. 
Finley  v.  Quirk  (9  Minn.  194),  1056. 
Finn  v.  Clark  (10  Allen,  479),  747. 
Finn  v.  Rose  (12  Iowa,  565).  139. 
Finney  v.  Apgar  (31  N.  J.  L,  266), 

293,  316,  324. 
Fiqued  v.  Allison  (12  Mich.  330),  17, 

1411. 
First  Baptist  Church  v.  Bigelow  (16 

Wend.  28),  461. 


First  Commercial  Bank  v.  Newton 

(117  Mich.  433),  138. 
First  Nat.   Bank  v.   Buchanan    (87 

Tenn.  32),  1422,  1429. 
First  Nat.  Bank  v.  Colter  (61  Ind.  152), 

1794. 
First  Nat.  Bank  v.  Cook  Carriage  Co. 

(70  Miss.  587),  564. 
First  Nat.  Bank  v.  Crocker  (111  Mass. 

163),  774. 
First  Nat.  Bank  v.  Crowley  (24  Mich. 

492),  520,  754. 
First  Nat.   Bank  v.   Dearborn    (115 

Mass.  219),  752,  788. 
First  Nat.  Bank  v.  Freeman  (47  Mich. 

408),  144 
First  Nat.  Bank  v.  Hughes  ( —  Cal. 

— ),  1805. 
First  Nat.  Bank  v.  Hummel  (14  Colo. 

259),  642. 
First  Nat.  Bank  v.  Kelley  (57  N.  Y. 

34),  792. 
First  Nat.  Bank  of  Elgin  v.  Kilbourne 

(20  N.  S.  R.  681),  642. 
First  Nat.  Bank  v.  Larsen  (60  Wis. 

206),  818. 
First  Nat,  Bank  v.  Lowry  (36  Neb. 

290),  960. 
First  Nat.  Bank  v.  Mass.  Co.  (123  Mass. 

330),  1309. 
First  Nat.   Bank  v.  Mc Andrews  (5 

Mont.  325),  51,  752. 
First  Nat.  Bank  v.  Oskaloosa  Pkg. 

Co.  (66  Iowa,  41),  1031,  1032. 
First  Nat.  Bank  v.  Pettit  (9  Heisk. 

447),  792. 
First  Nat.  Bank  v.  Reno  (73  Iowa, 

145),  18,  485,  502. 
First  Nat.  Bank  v.  Ridenour  (46  Kan. 

718),  955. 
First  Nat.    Bank  v.    Robinson    (105 

Iowa,  463>,  1281. 
First  Nat.  Bank  v.  Schmidt  (6  Colo. 

App.  216),  1565. 
First  Nat.  Bank  v.Schween  (127  111. 

573),  23,  642. 


TABLE    OF    CASES    CITED. 


CI 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  IT,  §§  798-1850. 


First  Nat.  Bank  v.  Shaw  (61  N.  Y. 

283),  169. 
First'  Nat.  Bank  v.  Tootle  (59  Neb. 

44),    908. 
First  Nat.   Bank  v.  Tufts  (53  Kan. 

710),  599,  603,  604. 
Fish  v.  Benedict  (74  N.  Y.  613),  50. 
Fish  v.  Cleland  (33  111.  237),  872. 
Fish  v.  Roseberry  (22  111.  888),  1340. 
Fishback    v.  Van  Dusen   (33   Minn. 
111).  39,  543,  549,  551,  552,  553,  554, 
721. 
Fisher  v.  Boynton  (87  Me.  395),  1129, 

L134 
Fisher  v.  Brown  (104  Mass.  259 
Fisher  v.  Fredenhall  (21  Barb.  82), 

1481 
Fisher  v.  Kulm  {54  Miss.  480\  126. 
Fisher  v.  Lord  (63  N.  H.  514),  1019, 

1027. 
Fisher  v.  Mellen  (10:!  Mas 
Fisher  v.  Mowbray  (8  East,  330),  134. 
Fisher  v.  Pollard  (2  Head,  314),  L27& 
Fitch  v.  Archibald  (29  N.  J.  L.  160), 

1340. 
Fitch  v.  Burk  (38  Vt.  683),  336,  964 
litis  v.  Hall  (9  N.  H.  441),  109,120. 
Fitzgerald  v.  Evans  (49  Minn.  541), 

1273. 
Fitzgerald  v.  Gorham  (4  Cal.   289), 

960. 
Fitzpatrick  v.  Osborne  (50  Minn.  201), 

1397,  1807,  1835. 
Fitzsimmons  v.  Express  Co.  (40  Ga. 

330),  392. 
Fitzsimmons  v.  Woodruff  (1  Thomp. 

&  C.  3),  305. 
Fixen  v.  Blake  (47  Minn.  540),  1843. 
Flack  v.  Gottschalk  Co.  (80  Md.  368), 

74. 
Flagg  v.  Baldwin  (38  N.  J.  Eq.  219), 

1031,  1039,  1043. 
Flagg  v.  Gilpin  (17  R.  L  10),  1031. 
Flanagan  v.  Demarest  (3  Robt.  173), 

1101. 
Flanders  v.  Maynard  (58  Ga.  56),  543. 

h 


Flanders  v.  Putney  (58  N.  H.  358), 

1162, 
Flannagans,  Ex  parte  (2  Hughes,  264), 

49. 
Flannery  v.   Rohrmayer  (46    Conn. 

558),  1079,  1389. 
Flash  v.  American  Glucose  Co.  (38  La. 

Ann.  4),  816,  1805. 
Fleck  v.  Warner  (25  Kan.  492),  569.,' 

629,  63a 
Fleeman  v.  McKean  (25  Barb.  474), 

891. 
Fleig  v.  Sleet  (43  Ohio 'St.  51),  1433, 

1436. 
Fleischmann  v.  Stern  (90  N.  Y.  110), 

1 128. 
Firming  v.  Beck  (48  Pa.  St.  309),  1831. 
Fleming  v.  Gilbert  (3  Johns.    528), 

1106. 
Fleming  v.  Hanley  (21  R.  I.  141),  942. 
Fleming  v.  Townsend(6  Ga.  103), 960. 
Fletcher  v.  Cole  (23  Vt.  114),  1148. 
Fletcher  v.  Howard  (2  Aik.  115),  960. 
Fletcher  v.  Ingram  (46  Wis.  191).  527. 
Fletcher  v.  Livingston  (153  Mass.  388), 

366. 
Fletcher  v.  Nelson  (6  N.  D.  94),  485, 

1247,  1281,  1293. 
Fletcher  v.  Young  (69  Ga.  591),  1273. 
Flick    v.  Wetherbee  (20  Wis.   392), 

1827. 
Flinn  v.  St.  John  (51  Vt.  334),  1057. 
Flint  v.  Corbitt  (6  Daly,  429),  305. 
Flint  v.  Gibson  (106  Mass.  391),  673. 
Flint  v.  Lyon  (4  Cal.  17),  1345. 
Florence  Mining  Co.  v.  Brown  (124 

U.  S.  385),  1095. 
Flower  v.  Peck  (1  B.  &  A.  428),  107a 
Floyd  Acceptances,  The  (74  U.  S.  666), 

191. 
Floyd  v.  Patterson  (72  Tex.  202),  1031. 
Flynn  v.  Allen  (57  Pa.  St.  482),  1303. 
Flynn  v.  Dougherty  (91  Cal.  669),  315. 
Flynn  v.  Messenger  (28   Minn.   208), 

isa 

Fogg  v.  Rodgers  (84  Ky.  558),  1209. 


Cll 


TABLE    OF   CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§1-797;  Vol.  II,  §§  798-1850. 


Fogel  v.  Brubaker  (122  Pa.  St,  7),  1211, 

1213,  1311,  1334,  1340. 
Foggart  v.  Blackweller  (4  Ired.  238), 

862,  1229,  1237. 
Foley  v.  Cowgill  (5  Blackf.  18),  937. 
Foley  v.  Felrath   (98  Ala.   176),  676, 

677,  684. 
Foley  v.  Holtry  (43  Neb.  133),  875. 
Foil's  Appeal  (91  Pa.  St,  437),  1728. 
Folsom  v.  Carli  (5  Minn.  333),  950. 
Folsom  v.  Cornell  (150  Mass.  115),  809, 

964. 
Fontaine  v.  Bush  (40  Minn.  141),  356, 

365. 
Fonville  v.  Casey  (1  Murph.  389),  200. 
Foos  v.Sabin  (84  111.  564),  1334,  1690. 
Foot  v.  Bently  (44  N.  Y.  166),  1255, 

1320. 
Foot  v.  Marsh  (51  N.  Y.  288),  702. 
Foote  v.  Cobb  (18  Ala.  585),  970. 
Forbes  v.  Railroad  Co.  (133  Mass.  154), 

792. 
Forcheimer  v.  Stewart  (65  Iowa,  598), 

1242,  1265,  1298,  1336, 1340. 
Ford  v.  Cobb  (20  N.  Y.  344),  646. 
Ford  v.  Fothergill  (1  Esp.  211),  128. 
Ford  v.  Fothergill  (Peake,  N.  P.,  229), 

127. 
Ford  v.  Oliphant  (32  S.  W.  R.  437), 

941. 
Ford  v.  Phillips  (1  Pick.  202),  121. 
Fordice  v.  Gibson  (129  Ind.  7),  754. 
Foreman  v.  Ahl  (55  Pa.  St.  325),  1053, 

1054. 
Fores  v.  Johnes  (4  Esp.  97),  1007. 
Forest  City  Ins.  Co.  v.  Morgan  (22  111. 

App.  198),  1259. 

Forke  v.  Arms  Co.  (—  Tex. ),  1372. 

Forrer  v.  Nash  (35  Beav.  167),  1096. 
Forrest  v.  Hamilton  (98  Ind.  91),  509. 
Forrest  v.  Nelson   (108   Pa.  St.  481), 

600. 
Forsaith  Mach.  Co.  v.  Mengel  (99  Mich. 

280),  669,  1380. 
Forsyth  v.  Jervis  (1  Stark.  437),  16. 
Forsyth  v.  Mann  (68    Vt.    110),   308, 

1768. 


Forsyth  v.  Mathews  (14  Pa.  St,  100), 

960,  966. 
Fosdick  v.  Greene  (27  Ohio  St.  484), 

1787. 
Fosdick  v.  Schall  (99  U.  S.  235),  569, 

590,  647. 
Foss  v.  Cummings  (149  111.  353),  1040. 
Foss  v.  Hildreth  (10  Allen,  76),  87. 
Foss-Schneider  Brewing  Co.  v.  Bul- 
lock (16  U.  S.  App.  311),  1090,  1380. 
Foster  v.  Adams  -(60  Vt.  392),  1664. 
Foster  v.  Caldwell  (18  Vt.  176),  1237. 
Foster  v.  Charles  (7  Bing.  107),  856, 

876. 
Foster  v.  Dawber  (6  Exch.  839),  805. 
Foster  v.  Frampton  (6  B.  &  C.  107), 

1577,  1601. 
Foster  v.  Hall  (12  Pick.  89),  953. 
Foster  v.  Hill  (36  N.  H.  526),  1428. 
Foster  v.  Lumberman's  Mining  Co. 

(68  Mich.  188),  205,  211,  234. 
Foster  v.  Mabe  (4  Ala.  402),  334. 
Foster  v.  Mackinnon  (L.  R.  4  C.  P. 

711),  266. 
Foster  v.  Magill  (119  111.  75),  527. 
Foster  v.  Mining  Co.  (68  Mich.  188), 

702. 
Foster  v.  Pettibone  (7  N.  Y.  433),  21. 
Foster  v.  Ropes  (11  Mass.  10),  508,  511, 

740. 
Foster  v.  Taylor  (3  Nev.  &  Man.  244), 

1045. 
Foster  v.  Thurston   (11   Cush.  322), 

1019. 
Foster  v.  Warner  (49  Mich.  641),  624. 
Foster  v.  Wooten  (67  Miss.  540),  1053. 
Fothergill  v.  Rowland  (L.  R.  17  Eq. 

132),  1722. 
Fourth  Nat.  Bank  v.  St.  Louis  Cotton 

Comp.  Co.  (11  Mo.  App.  333),  1507. 
Fowler  v.  Bowery  Sav.  Bank  (113  N. 

Y.  450),  909. 
Fowler  v.  Frisbie  (3  Conn.  320),  970. 
Fowler  v.  McTaggart  (1  East,  522), 

1548,  1549. 
Fowler  Elevator  Co.  v.  Cottrell  (38 

Neb.  512),  428. 


TABLE    OF    CASES    CITED. 


cm 


References  are  to  sections:  Vol  I,  §§  1-707;  Vol.  II,  §§  708-1850. 


Fox  v.  Harding  (7  Cusli.  516),  1762. 
Fox  v.  Harvester,  etc.  Works  (83  Cal. 

333),  1344. 
Fox  v.  Hazelton  (10  Pick.  275),  212. 
Fox  v.  Hills  (1  Conn.  294),  970. 
Fox  v.  Kitton  (19  111.  519),  1089, 1090. 
Fox  v.  Pricket  t  (34  N.  J.  L.  13),  56. 
Fox  v.  Turner  (1  111.  App.  153),  229, 

233. 
Fox  v.  Utter  (G  Wash.  299),  310. 
Foye  v.  Patch  (132  Mass.  105),  451. 
Fragano  v.  Long  (4  B.  &  C.  219),  393, 

736,  740,  741,  757,  1181,  1496. 
Fraley  v.  Bispham  (10  Pa.  St.  320), 

124%  1320. 
Frame   v.  Coal  Co.  (97  Pa.  St.  309), 

ll.-.l.  1452. 
Francis  v.  Barry  (69  Mich.  311),  428. 
Francis  v.  Cockrell  (L.  R.  5  Q.  B.  501), 

1346. 
Francis-Chenoweth  Hardware  Co.  v. 

Gray  (104  Ala.  236),  490,  49* 
Frank  v.  Batten  (49  Hun,  91),  603. 
Frank  v.  Eltringham  (65  Miss.  281), 

434,  445. 
Frank  v.  Harrington  (36  Barb.  415), 

342,  343. 
Frank  v.  Hoey  (128  Mass.  263),  739. 
Frank  v.  Lanier  (91  N.  Y.  112),  838, 

1849. 
Frank  v.  Miner  (50  111.  444),  9G3. 
Franklin  v.  Long  (7  Gill  &  J.  407), 
.  199,  816,  1805. 
Franklin   v.   Miller  (4  A.  &  E.  599), 

1097. 
Franklin  Sugar  Ref.  Co.  v.  Collier  (89 

Iowa,  69),  906. 
Fraschiers  v,  Henriques  (6  Abb.  Prac, 

N.  S.,  251),  1587. 
Fraser  v.  Witt  (L.  R.  7  Eq.  Cas.  64), 

1527,  1541. 
Frasure  v.  Zimmerly  (25  111.  202),  820. 
Frazier    v.   Harvey  (34  Conn.   469), 

1311. 
Frazier  v.  Simmons  (139  Mass.  531), 

1670. 


Frazier  v.  Smith  (00  111.  145),  1831. 
Frazier    v.    Thompson   (2  Watts  & 

Serg.  235),  1004. 
Freed  v.  Brown  (55  Ind.  310),  69,  72, 

73. 
Freehling    v.   Bresnahan  (61   Mich. 

540),  950. 
Freeman  v.  Bridger  (4  Jones  L.  1), 

129, 132. 
Freeman  v.  Cooke  (2  Exch.  654),  170, 

845. 
Freeman  v.   Harwood  (49  Me.  195), 

1787. 
Freeman  v.  Hensley  ( —  Cal.  — ), 

964. 
Freeman  v.  Holmes  (62  Ga,  556).  185. 
Freeman  v.  Kraemer  (63  Minn.  242), 

153,  779. 
Freeman  v.  Nichols  (116  Mass.  309), 

549,  1482. 
Freeman  v.  Pope  (L.  R.  5  Ch.  App. 

538),  974. 
Freeman  v.  Robinson  (38  N.  J.  L.  383), 

186. 
Freeman  v.  Topkis  (1  Marv.  174),  905. 
Freeport  Stone  Co.  v.  Carey  (42  W. 

Va.  276),  549. 
Frees  v.  Baker  (81  Tex.  216),  955. 
Freeth   v.    Burr  (L.  R.  9  C.  P.  208), 

1141,  1145.  1148. 
Freiberg  v.  Steenbock  (54  Minn.  509', 

964,  1193. 
French  v.  Fitch  (67  Mich.  492^,  936. 
French  v.  French  (8  Ohio,  214).  86, 87. 
French  v.  Hall  (9  N.  H.  137),  965. 
French  v.  Hay  (22  Wall.  231),  577. 
French  v.  Osmer  (67  Vt.  427),  589, 

592,  629. 
French  v.  Parish  (14  N.  H.  496).  1798. 
French  v.  Vining  (102  Mass.  132),  869, 

1349,  1357. 
Frenzel  v.  Miller  (37  Ind.  1),  863. 
Fresno  Milling  Co.  v.  Fresno  Canal, 

etc.  Co.  (126  Cal.  640),  1099. 
Freyman  v.  Knecht  (78  Pa.  St.  141), 

820,  1817. 


CIV 


TABLE    OF    CASES    CITKD. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  IT,  §§  798-lfcO. 


Frick  v.  Hilliard  (95  N.  G  117),  583. 
Frieber  v.  Stover  (30  Ark.  727),  138. 
Friedberg   v.   Moffett   (91    Hun,  17), 

1420. 
Friedlander  v.  Railroad  Co.  (130  U.  S. 

416).  166. 
Friend  Bios.  Clothing  Co.  v.  Hulbert 

(98  Wis.  183),  914,  918. 
Frink  v.  Tbomas  (20  Oreg.  265),  914. 
Fripp  v.  Fripp  (Rice's  Ch.  84),  804. 
Frisbee  v.  Chickering  (115  Mich.  185), 

896,  901. 
Fritz  v.  Stover  (22  Wall.  198),  1455. 
Frohreich  v.  Gammon  (28  Minn.  476), 

1357,  1835. 
Frolich  v.  Alexander  (36  111.  App. 

428),  1013. 
Fromer  v.  Stanley  (95  Wis.  56),  879, 

905. 
Frost  v.  Blanchard  (97  Mass.   155), 

1254. 
Frost  v.  Deering  (21  Me.  156),  451. 
Frost  v.  Gage  (3  Allen,  560),  996. 
Frost  v.  Hill  (3  Wend.  386),  462. 
Frost  v.  Knight  (L.   R.   7   Ex.  Ill), 

1088,  1089,  1711,  1753. 
Frost  v.  Lowry  (15  Ohio,  200),  915, 

917,  919. 
Frost  v.  Parker  (65  Iowa.  178),  139. 
Frost  v.  Woodruff  (54  111.  155),  508. 
Frostburg  Mining  Co.  v.  New  Eng- 
land Glass  Co.  (9  Cush.  115),  366. 
Frue  v.  Houghton  (6  Colo.  318),  1724, 

1727. 
Fruit  Co.  v.  McKinney  (65  Mo.  App. 

220),  401. 
Fry  v.  Mobile  Savings  Bank  (75  Ala. 

473),  714. 
Fry-S  heckler  Co.  v.  Iowa  Brick  Co. 

(104  Iowa,  494),  1387. 
Frye  v.  Milligan  (10  Ont.  509),  1223. 
Fuller  v.  Bean  (34  N.  H.  290),  213, 478; 

499,  552,  674,  714. 
Fuller  v.  Byrne  (102  Mich.  461),  619. 
Fuller  v.  Duren  (36  Ala.  73),  13, 15, 17, 

1411. 


Fuller  v.  Eamea  (108  Ala.  161),  619. 
Fuller  v.  MoHenry  (83  Wia  573),  138. 
Fuller  v.  Parrish  (3  Mich.  211),  10. 
Fullington    v.     Northwestern,-  etc. 

Ass'n  (48  Minn.  490),  974. 
Fulton  Bros.  v.  Upper  Canada  Furni- 
ture Co.  (9  Ontario  Appeal  Reports, 

211),  228. 
Funke  v.  Allen  (54  Neb.  407),  1694 
Tinman  v.   Railroad  Co.  (106  N.  Y. 

579),  774 
Furnas  v.  Friday  (102  Ind.  129),  856. 
Fumeaux  v.  Easterly  (36  Kan.  539), 

1288.  1384,  1386. 
Gaar    v.    Bicks  (—  Tenn.  Ch.  — ), 

1806,  1813. 
Gaar  v.  Stark   (—  Tenn.   Ch.  — ), 

L826. 
Gabannon  v.   Kreeft  (L.  R.  10  Ex. 

274),  784,  787,  792. 
Gachet  v.  Warren  (72  Ala.  288),  1314. 
Gaddis  v.  Leeson  (55  111.  83),  410. 
( fadsden  v.  Lance  (1  McMul.  Eq.  87), 

331. 
Gaff  v.  Homeyer  (59  Mo.  345),  363. 
Gage  v.  Fisher  (5  N.  D.  297),  1728. 
Gaines  v.  McKinley  (1  Ala.  446),  1281, 

1294. 
Gainsville  Nat.  Bank  v.  Bamberger 

(77  Tex.  48),  878,  892,  895,  901. 
Galbraith   v.  Holmes  (15  Ind.  App. 

34),  416. 
Galbreath  v.  Cook  (30  Ark.  417),  952. 
Gale  v.  Corey  (112  Ind.  39),  1417. 
Gale  Mfg.  Co.  v.  Moore  (46  Kan.  324), 

681. 
Gale  Sulky-Harrow  Mfg.  Co.  v.  Stark 

(45  Kan.  606),  816,  1805. 
Galena,  etc.  R.  Co.  v.  Ennor  (123  111. 

505),  1787. 
Galigher  v.   Jones  (129  U.   S.   193), 

1787,  1788. 
Gallagher  v.  Waring  (9  Wend.  20), 

1320. 
Gallick  v.  Bordeaux  (22  Mont.  470), 

964. 


TABLE    OF    CASES    CITED. 


CV 


References  are  to  sections:  Vol.  I,  §§  1  -797;  V<  1  IT.  §§  70S  -1850. 


Galligan   v.   Fannan   (7   Allen.  255), 

L019,  1027. 
GaUober  v.  Martin  (33  Kan.  252 
Gallop  v.  Newman  [7  Pick.  282  .  1201. 
Galloway    v.   Holmes  (1  Doug.  330), 

nit;:;. 
Galloway  v.  Week  (54  Wia  804),  499, 

516,  520,  702. 
Galpin  v.  Atwater(29  Conn.  93 
Galpin  v.  Wilson  (40  Iowa,  90),  ''•:. 
Galvin  v.  Bacon  (11  Me  28),  82a 
Galvin  v.  Mackenzie  (21   <  >reg.   ivi . 

B61. 
Gamble  v.  Tripp  (99  CaL  223),  942. 
Gammage  v.  Alexander!  1 1  Tex.  ill, 

75 1. 
Gammell  r.Gunby  (52  Ga  504),  1344 
Gammon  v.  Abrams  i">;;   Wi 

8ia 

■  n-.  In  re  (14  Pa  St.  Ill 
Gannard  v.  Eelava  (20  Ala  : 
Gant  v.  Shelton  (3  R  Moa  120),1242. 
Garbraoht  v.  Com  (98  Pa  St  149),  739. 
Garbntt  v,  Bank  22  Wia  B84  .  908 
Garbutl  v.  Watson  (5 .Barn.  &  Aid. 

:,i:;.,  299,  BOO,  8ia 
Gardiner  v.  Gray  (4  Camp.  144),  1 16, 

i:;ji.  1327. 
Gardiner  v.  Suydam  (7  N.  Y.  357), 

714 
Gardinier  v.  Tubbs  (21  Wend.  169), 

963 
Gardner  v.  Dutch  (9  Masa  4-27),  702, 

711. 
Gardner  v.  Grout  (2  C.  B.  340),  400. 
Gardner  v.  Howland   (2    Pick.    599). 

380,  483,  120L 
Gardner  v.  Joy  (9  Mete.  177),  307,  324. 
( tardner  v.  Kleinke  (46  N.  J.  Eq.  90), 

97  l. 
Gardner  v.  Lane  (12  Allen,  39),  217, 

272,  271.  275,  095,  740. 
Gardner  v.  Trenary    (65  Iowa,   646), 

L841. 
Garfield   v.  Paris  (96  U.  S.  557),  362, 

369, 


Garr  v.  Haskett  (86  Ind.  373),  131. 
Garrard  v.  Frankel  (30  Beav.  445), 

B53. 
Garrett  v.  Crooks  (15  La.  Ann.  483), 

41. 
( larrets  »n  v.  Selby  (37  Iowa,  529),  746. 
Garrow  v.  Brown  (Winston's  Eq.  46, 

86  Am.  Dec.  450),  65. 
(  fori  ner  v.  Corwine  (57  Ohio  St.  246), 

1239. 
( lartner  v.  Hand  (86  Ga.  558),  231. 
Gartrell   v.   Stafford  (12    Neb.  545). 

■1 19. 
Gary  v.  Jacobson  (55  Miss.  204),  947. 
Gassett  v.  Glazier  (165  Mass.  473),  937. 
Gates  v.  BUss(48  Vt.  299),  820. 
Gates  v.  Nelles  (62  Mich.  444),  234 

v.  Raymond  (106  Wis.  657),  9ia 
GatUngV.  Newell  (9  Ind.  572),  ills. 
Gatrell  r.  Clay  (81  Ga  327),  60a 
Gatzmer  v.  Moyer  ( — Pa.  St. — ), 

ioa 

Gault  v.  Brown   (48  N.  H.  183),  349, 

362,  401,  420. 
( iav  in  v.  Armistead  (57  Ark.  574),  905, 

908 
( law  v.  Bennett  (153  Pa.  St.  247),  1031, 

1032,  1036 
Gay  v.  Ballou  (4  Wend.  403),  122, 123, 

132. 
Gay  v.  Dare  (103  Cal.  454).  685. 
( lay  v.  Osborne  (102  Wis.  641),  918. 
Gaylor  v.  Copes  (16  Fed.  R.  49),  1807. 
Gaylord  Mfg.  Co.  v.  Allen  (53  N.  Y. 

515),  1380,  1390,1391,  1392. 
Gaylord  v.  Soragen  (32  Vt.  110),  1013, 

1027. 
Geary  v.  Physic  (7  D.  &  R.  653),  451. 
Gehl  v.  Milwaukee  Produce  Co.  (105 

Wis.  573),  1650,  1690,  1692. 
Geib  v.  Reynolds  (35  Minn.  331),  1423. 
Geiger  v.  Cook  (3  W.  &  S.  266),  834. 
Geist  v.  Stier  (134  Pa.  St.  216),  625. 
Gelston  v.  Sigmund  (27  M&  334),  211. 
Gennert   v.  Wuestner  (53  N.  J.  Eq. 

302),  1057. 


CV1 


TABLE  OF    CASES    CITED. 


References  are  to  sections:  Vol. 

Genesee    County  Savings    Bank  v. 

Michigan  Barge  Co.  (52  Mich.  164), 

878,  895. 
Gentilli  v.  Starace  (133  N.  Y.  140), 

12G5,  1382. 
Gentry  v.  Templeton  (47  Mo.  App.  55), 

603. 
George  v.  George  (47  N.  H.  27),  1052, 
George  v.  Johnson  (6   Humph.  36), 

868,  869.  935. 
George  v.  Norria  (23  Ark.  121),  960. 
George  v.  Skivington   (L.   R.    5   Ex. 

Cas.  1),  878. 
George  v.  Tufts  (5  Colo.  162),  600. 
Gerhard  v.  Bates  (2  EL  &  Bl.  476), 

936. 
Gerli  v.  Poidebard  Silk  Mfg.  Co.  (57 

N.  J.  L.  432),  1148. 
German  Saw  and  Loan  Society  v.  De 

Lashmutt  (67  Fed.  R  399).  72. 
German  Saving  Inst.  v.  DeLaVergne 

Co.  (36  U.  S.  App.  184),  1078. 
German  Savings  Society  v.  Weber 

(16  Wash.  95),  647. 
Gerow  v.  Castello  (11  Colo.  560),  568, 

569,  573,  693. 
Gerrish  v.  Clark  (64  N.  H.  492),  569, 

603. 
Gerrish  v.  Maher  (70  111.  470),  1458. 
Gerst  v.  Jones  (32  Gratt.  518),  1214, 

1344. 
Gerwig  v.  Sitterly  (56  N.  Y.  214),  1429. 
Getchell  v.  Jewett  (4  Greenl.  350), 

425. 
Gether  v.  Capper  (18  C.  B.  865),  234. 
Getty  v.  Roundtree  (2  Pin.  379),  1311, 

1344,  1844. 
Gibbons  v.  Bente  (51  Minn.  499),  1091. 
Gibbons  v.  Robinson  (63  Mich.  146), 

775. 
Gibbs  v.  Benjamin  (45  Vt.  124),  367, 

714. 
Gibson  v.  Carruthers  (8  M.  &  W.  321), 

1526,  1551. 
Gibson  v.  Cranage  (39  Mich.  49),  665, 

666. 


L  §§  1-707;  Vol.  II,  §§  798-1850. 

Gibson  v.  Holland  (L.  R  1  C.  P.  1), 

432. 
Gibson  v.  Pelkie  (37  Mich.  380),  199, 

274 
Gibson  v.  Soper  (6  Gray,  279),  70,  72, 

77,  79. 
Gibson  v.  Stevens  (49  U.  S.  384),  166, 

491,  709,  788,  111)7. 
Gibson  v.  Tobey  (46  N.  Y.  637),  1423, 

1 1-.'.-..  L433. 
Gibson  v.  Vail  (53  Vt.  47S),  661,  670, 

1402. 
Giddey  v.  A  It  man  (27  Midi.  206),  628. 
Gieve,  In  re  (1  Q.  B.  794).  20& 
Giffert   v.  West  (33  Wis.  617),  1235, 

1817. 
Gilbert  v.  Decker  (53  Conn.  401).  9G3. 
Gilbert  v.  Ganger  (8  Biss.  214).  1032. 
Gilman  v.  Hill  (36  N.  H.  311),  35& 
Gilbert  v.  Holmes  (64  111.  548',  ','"»:. 
Gilbert  v.  Lichtenberg  (98  Mich.  417), 

401,  402. 
Gilbert  v.  Moline  Plough  Co.  (119  U.  S. 

491),  1254. 
Gilbert  v.  National  Cash  Register  Co. 

(176  III  288),  583. 
Gilbert  v.  Stockman  (76  Wis.  62),  446. 
Gilbert  v.  Stockman  (81  Wis.  602),  947. 
Gilchrist  v.  Hilliard  (53  Vt,  592),  1303. 
Giles  v.  Bradley  (2  Johns.  Cas.  253), 

264. 
Giles  v.  Simonds  (15  Gray,  441),  336, 

6-26,  1191. 
Gilkerson-Sloss  Com.  Co.  v.  Salinger 

(56  Ark.  294),  138. 
Gill  v.  Benjamin  (64  Wis.  362),  527, 

529,  1380,  1392. 
Gill  v.  Bicknell  (2  Cush.  355),  461,  462. 
Gill  v.  Bradley  (21  Minn.  15),  1417. 
Gill  v.  Browne  (53  Fed.  R.  394),  1134. 
Gill  v.  De  Armant  (90  Mich.  430),  599. 
Gill  v.  Frank  (12  Oreg.  507),  1194. 
Gill  v.  Kaufman  (16  Kan.  571),  731, 

1320. 
Gill  v.  Lumber  Co.  (151  Pa,  St  534), 

1163. 


TABLE   OF    CASES    CITED. 


CVll 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  D,  §§  798-1850. 


Gill  v.  Rea.l  (5R  L  343).  184 
Gillespie  v.  Bai  e  -  (12  W.  Va.  70),  95. 
Gillespie  v.  Cheney  (1896,  2  Q.  a  59), 

1258,  1344. 
Gillette  v.  Stoddart  (30  111.  App.  231), 

960. 
Gilliat  v.  Roberts  (19  L.  J.  Ex.  410), 

400. 
Gilligan  v.  Lord  (51  Conn.  662),  96ft 
Gilliland  v.  Phillip*,  l  &G  L52),104a 
Gillman  v.  Carbutt(81  L.  T.  R.,  N.  S., 

1 505 
Gilmaa   v.  Andrews  (66  Iowa,  116), 

L787. 
Gilman  v.  Andrus(28  Vt.  241),  185 
Oilman  r.   Bill  (88  N.  H.  811 

359,  518,  520,  528,  764 
Gilmore  v.  Newton  (9  Allen,  tf 
Gilmore    v.    Wilbur  (12  Pick.   120), 

1132. 
Gilmore  v.  Williams  (162  Mass.  331), 

Gilmoor  v.  Supple  (11  Moore,  P.  C. 

566),  281,  515,  725. 
(i in. Ire  v.  Sean  (31    Abb.  X.  C.  100), 

19. 
Gipps  Brewing  Co.  v.  De  France  (91 

towa,  108),  1029. 
Gerard  v.  Taggart  (5  Berg.  &  R  19), 

1643,  1682,  1693. 
Girarday  v.  Richardson  (1  Esp  13), 

1022.  ' 
Giroux  v.  Stedman  (145  Mass.    139), 

1357. 
Gist  v.  W.  U.  Tel.  Co.  (45  S.  < 

104a 

Gittings  v.  Nelson  (86  111.  591),  202 
Glaholm  v.  Hays, 2  M.  &  G.  251 
Glasgow  v.Nicholson  (25  Ma  ! 
GlaspeU  v.  N.  P.  R  Co.  (43   Fed.  R. 

900),  1843. 
Glass  v.  Whitney  (22  Q.  B.  290),  714. 
Glasscock  v.  Hazell  (109  N.  C.  145), 

658. 
Glanbensklee  v.  Low  (29  111.   App 

108),  139. 


Gleason  v.  Beers  (59  Vt.  581),  23. 
Glenn  v.  Smith  (2  G.  &  J.  493),  1423. 

1425,  1427. 
Glisson  v.  Heggie  (105  Ga.  30),  620. 
Globe  Milling  Co.  v.  Elevator  Co.  (44 

Minn.  153),  153,  549,  552,  557. 
Goad  v.  Johnson  (6  Heisk.  340),  1356, 

1357. 
Godchaux  v.  Mulford(26  Cal.  316),  966. 
Goddard  v.  Binney  (115  Mass.  450), 

306,324  754,  757,1122,1187. 
Goddard  v.  Weil  (165  Pa.   St.  419), 

11117. 
(  todfrey  v.  Crisler  (121  Ind.  203),  1 121, 

1  129. 
( lodfrey  v.  Miller  (80  Cal.  420),  953. 
Godts  v.  Rose  (17  C.  B.  229),  387,  740, 

1  193 
Godts  v.  Rose  (25  L.  J.  C.  P.  61),  775. 
Gold   Mining  Co.  v.  National  Bank 

(96  U.  S.  640),  1046. 
(  tolden  v.  Ogden  (15  Pa.  St.  528),  714 
Golding,   Davis  &  Co.,  Ex  parte  (13 

Ch.  Div.  628),  1569. 
Goldrich  v.  Ryan  (3  E.  D.  Smith,  324  \, 

1357. 
(  toldsborongh  v.  Turner  (67  N.  C.  403), 

1  155. 
Goldsmith  v.  Bryant  (26  Wis.  33),  543. 
Goldstooe  v.  Merchants'  Ice  &  Cold 

storage  Co.  (123  Cal.  625),  164 
Golloher  v.  Martin  (33  Kan.  252),  966. 
Gomer  v.  McPhee  (2  Colo.  App.  287), 

1163. 
Gompertz  v.  Bartlett  (2  El.  &  Bl.  849), 

1155.1208. 
Gompertz  v.  Denton  (1  Cr.  &  M.  207), 

1805 
Gooch  v.  Holmes  (41  Me.  423),  331, 

1665. 
Good   v.    Singleton   (39    Minn.   340), 

i  (-;:;. 
Goodal  v.  Skelton  (2  H.  Bl.  316),  404, 

1 185 
Goodell  v.  Fairbrother  (12  R  I.  233), 

156,  588,  599. 


CV111 


TABLE    OF    CASES    OITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Goodenow  v.  Tyler  (7  Mass.  36),  1446. 
Goodkiud  v.  Gilliam  (19  Mont,  385), 

624. 
Goodland  v.  LeClair(78  Wis.  176),  314, 

331. 
Goodloe  v.  Rogers  (10  La.  Ann.  631), 

1792. 
Goodman  v.  Griffiths  (1  H.  &  N.  574), 

138,  m 

Goodman  v.  Shipley  (103  Mich.  439). 

138. 
Goodman  v.  Winter  (64  Ala.  410),  109. 
Goodnow  v.  Smith  (18  Pick.  1 1  I  >,  1  120. 
Goodrich  v.  Hubbard  (31   Mich.   02), 

1709,  1712. 
Goodrich  v.  Tracy  (43  Vt  314>,  1 122. 
Goodrich  v.  Van    Nortwick  (43   111. 

445),  663,  680,  814. 
Goodsell  v.  Myers  (3  Wend.  179),  121. 
Goodspeed  v.  South  Bend  Plow  Co. 

(45  Mich.  237),  1431. 
Goodwin's  Appeal  (117  Pa,  St.  514), 

1727. 
Goodwin  v.  Clark  (65  Me.  280),  1004. 
Goodwin  v.  Cremer  (18  Q.  B.  757),  1 466. 
Goodwin  v.  Follett  (25  Vt.  386),  1419, 

1420. 
Goodwin  v.  Goodwin  (90  Me.  23),  964, 

998. 
Goodwin    v.    Massachusetts     Loan 

Ass'n  (152  Mass.  189),  875,  924,  932, 

1433. 
Goodwin  v.  Railroad  Co.  (Ill  Mass. 

487),  549. 
Goodwin  v.   Wertheimer  (99  N.   Y. 

149),  928,  929. 
Googins  v.  Gilmore  (47  Me.  9),  960. 
Gookin  v.  Graham  (5  Humph.  480), 

1302,  1305. 
Goom  v.  Appalo  (6  B.  &  C.  117).  468. 
Goom  v.  Jackson  (5  Esp.  112),  740. 
Gordon  v.  Irvine  (105  Ga.  144),  935. 
Gordon  v.  Nieman  (118  N.  Y.   152), 

812. 
Gordon  v.  Norris  (49  N.  H.  376),  754. 


Gordon  v.  Parmelee    (2  Allen,    212), 

936,  938. 
Gordon  v.  Potter  (17  Vt.  348),  186. 
Gordon  v.  Riteuour  (87  Mo.  54),  130. 
Gordon  v.  Watrous  (36  Up.  Can.  Q. 

B.  321),  1255,  1377. 
Gore  v.  Gibson  (13  Mees.  &  W.  623), 

87. 
Gorham  v.  Holden  (79  Me.  317),  569. 
Gorman  v.  Brossard  (120  Mich.  611), 

328,  382,  383,  416. 
Gormerly  v.  Gymnastic    Ass'n    (55 

Wis.  350),  872. 
Goshell  v.  Archer  (2  Ad.  &  El.  500), 

458. 
Goslen  v.  Campbell  (88  Me.  450),  612, 

624. 
Goss  v.  Dysant  (31  Tex.  186),  1794. 
Goss  Printing  Press  Co.  v.  Jordan 

(171  Pa.  St.  474),  565,  600. 
Goss  v.  Lord  Nugent  (5  B.  &  Ad.  58), 

447,  806. 
Goss  v.  Quinton  (3  M.  &  G.  825),  761. 
Gossler  v.  Eagle  Sugar  Refinery  (103 

Mass.  331),  1337. 
Gossler  v.  Schepeler  (5  Daly,  470), 

1531. 
Gottschalk  v.  Stein  (09  Md.  51),  1721, 

1730. 
Goudy  v.  Gebhart  (1  Ohio  St.  202), 

947. 
Gould  v.  Blodgett  (61  N.  H.  115),  175. 
Gould  v.  Bourgeois  (51  N.  J.  L.  361  \ 

1302,  1309. 
Gould  v.  Huntley  (73  Cal.  399),  965. 
Gould  v.  Stein  (149  Mass.  570),  1275, 

1320,  1331,  1334,  1335,    1339,   1392, 

1393. 
Goulds  v.  Brophy  (42  Minn.  109),  1254, 

1349,  1352, 
Gove  v.  Wooster  (Lalor's  SupL  30), 

199. 
Governor,  etc.  v.  Petch  (28  Eng.  L.  & 

Eq.  470),  226. 
Gowen  v.  Klous  (101  Mass.  449),  436. 


TABLE    OF   CASES    CITED. 


C1X 


References  are  to  s<Krtions:  Vol.  I,  §§  1-797;  Vol.  IT,  §§  798-1850. 


Gowing  v.  Knowles  (118  Mae 

237,234 
Grace  v.  Hale  (2  Humph-   27),  131, 

132. 
Grace  v.  McKissack  (49  Ala.  163),  17". 
Gra  ll"  v.  Kern  (109  111.  557),  981,982. 
Graff  v.  Evans  (8  Q.  B.  Div.  8*3 
Graffv.  Pitch  (58  111.  878),  496,  502, 

964,  1199. 
Graff  v.  Foster  (67  Mb.  512),  1320. 
Graff  v.  Osborne  (56  Kan.  162),  1393, 

1808, 
Graffenstein  v.  Epstein  (23  Kan.  443), 

936,  937. 
Grafton  v.  Cummings  (99  TJ.  S.  100), 

434 

I  v.  Martin  (12  Allen,  196 
Graham  v.  DuckwaU  (8  Bush,  12), 

1447. 
Graham  v.  Maitland  (6  Abb.  Pr.  327), 

1692. 
Graham  v.  Musson(5  Bing.  N.  C.  603), 

460. 
Graham  v.  Negus  (55  Hun,  44" 
Graham  v.  -  Vt  578),  868, 935. 

Graham  v.  Thompson  (55  Ark.  299), 

934 
Graham  v.  TJ.  S.  Saving  Inst.  ( 16  Ma 

186),  1461. 
Graham  v.  Van  Diemen's  Land  Co. 

ill  Exch.  101),  usa 
( ;  rami  Ave.  Hotel  Co.  v.  Wharton  (79 

Fed.  R.  43).  1349. 
Grand  Tower  Co.  v.  Phillips  (23  Wall 

47b.  1690,  1736,  17431 
Granite    Roofing    Co.  v.  Casler  (82 

Mich.  466 
Grant  v.  Fletcher  (5  B.  &  C.438  .  t6& 
Grant  v.  Grant  (56  Me.  573),  872. 
Grant  v.   MoGrath  (56   Conn.  333), 

1057. 
Grant  v.  Merchants' Bank  (35  Mich. 

515),  499,  516,1129. 
(Iran  v.  McVicker  (8  Biss.  13),  1090. 
Graul  v.  Strutzel  (58  Iowa, 715),  1291. 


Graves  v.  Johnson  (156  Mass.  211), 

1013,  1018,  1019,  1027. 
Graves  v.  Legg  (9  Ex.  709),  654,  861, 

1145 
Graves  v.  Legg  (2  HurL  &  N.  210), 

1281. 
Graves  v.  Morse  (45  Neb.  604),  1374. 
Graves  v.  Safford  (41  111.  App.  659), 

1004. 
'  1  raves  v.  Weld  (5  B.  &  Ad.  105),  342. 
Gray  v.  Barton  (55  N.  Y.  OS).  12. 
day  v.  Blanchard  (S  Pick.  283),  1072. 
Cray  v.  Central  R.  Co.  (11  Hun,  70), 

667. 
Cray  v.    Consolidated   Ice  Machine 

Co.  (103  Ga.  115),  1377,  1402,  1806. 
Cray  v.  Davis  (10  X.  Y.  285),  360,380. 
Cray  v.  Herman  (75  "Wis.  453),  1467. 
Gray  v.  Walton  (107  N.  Y.  254  .  His, 

1124  1187,  1191. 
Graydon  v.  Patterson  (13  Iowa,  256), 

1 155 
Great   Northern  Ry.  Co.  v.  Witham 

(L  R.  9  C.  P.  16),  263. 
Greaves  v.  Ashlin  (3  Camp.  420),  17  is 
Grebert-Borgnis  v.  Nugent  (15  Q.  B. 

Div.  -  1766,  1770. 

Greely  v.   Bartlett  (1  Greenl.   172), 

1 1 16. 
Green  v.  Adams  (59  Vt.  602),  970. 
Green  v.  Ansley  (92  Ga.  047  ,  1634 
Green  v.  Armstrong  (1  Denio,  550), 

336.  341. 
Green  v.  Ashland  Iron  Co.  (62  Pa.  St. 

97  .  347. 
Green  v.  Ashland  Water  Co.  (101  Wis 

1356.  1359. 
Green  v.  Bateman  (2  Woodb.  &  M. 

359),  278. 
Green  v.  Beeson  (31  Ind.  7).  191. 
Green  v.  Boston  &  L  R.  Co.  (128  Mass. 

1 743. 
Green  v.  Bryant  (2  Ga.  66),  937. 
Green  v.  Collins  (3  Cliff.  494),  1013, 

1015. 


ex 


TABLE    OF    CASKS    CITED. 


References  arc  to  sections:  Vol.  T,  §§  1-  797;  Vol.  n,  §§  708-1850. 


Green  v.  Green  (69  N.  Y.  553),  109. 
Green  v.  Merriam  (28  Vt.  801),  385, 

1198. 
Green  v.  Sperry  (16  Vt.  390),  178. 
Green  v.  Stuart  (7  Baxt.  418),  834. 
Green  v.  Tanner  (8  Mete.  411),  15ft 
Green  v.  Van  Buskirk  (5  Wall.  307), 

650. 
Green  v.  Wells  (2  Cal.  584),  804. 
Green  v.  Wilding  (59  Iowa,  679),  95. 
Green  Bay  Nat.  Bank  v.  Dearborn 

(115  Mass.  219),  964 
Greene  v.  Dingley  (24  Me.  131),  1132. 
Greene  v.  Godfrey  (44  Me.  25),  1053. 
Greene  v.  Lewis  (85  Ala.  221),  202,  206, 

207,  496,  498,  1659. 
Greenbrier  Lumber  Co.  v.  Ward  (36 

W.  Va.  573),  1129. 
Greenfield's  Case  (14  Pa.  St.  489),  260. 
Greenhood  v.  Keator  (9  111.  Apr*  183), 

1447,  1448. 
Greenleaf  v.  Gallagher  (93  Me.  549), 

1665. 
Greenstine  v.  Borchard  (50  Mich.  434), 

1273. 
Greenthal  v.  Lincoln  (68  Conn.  384), 

966. 
Green  vault  v.  Davis  (4  Hill,  643).  1796. 
Greenwald  v.  Metcalf  (28  Iowa,  363), 

1463. 
Greenway  v.  Gaither   (Taney,  227), 

1090. 
Greenwell  v.  Nash  (13  Nev.  286),  953. 
Greenwood  v.  Burns  (50  Mo.  52),  1455. 
Greenwood  v.  Curtis  (6  Mass.  358), 

1125. 
Greenwood  v.  Law  (55  N.  J.  L.  168), 

331. 
Greer  v.  Church  (13  Bush,  430),  568, 

576,  578,  583,  588,  600. 
Greer  v.  Wright  (6  Gratt.  154),  970. 
Gregg  v.  Page  Belting  Co.  (69  N.  H. 

247),  1337,  1349. 
Gregg  v.  Wells  (10  Adol.  &  El.  90), 

170. 
Gregory  v.  Morris  (96  U.  S.  619),  1484. 


Gregory  v.  Schoenell  (55  Ind.  101), 

879,  L223 
Gregory  v.  Wat towa  (58  Iowa,  711), 

1034. 
Gregory  v.  Wendell  (39  Mich.  337), 

203,  1031,  1032,1035,  1036. 
Gregory  v.  Wendell  (40  Mich.  432), 

709,  1031,  1032,  1033. 
Gregson  v.  Coal  Co.  (54  S.  W.  R.  113), 

1155. 
I !  regson  v.  Pucks  (4  Q.  B.  737),  468. 
Gresham  v.  Bryan  (103  Ala.  629),  714. 
Gresham  v.  Postan  (2  Car.  &  P.  540), 

1810. 
Greve  v.  Dunham  (60  Iowa,  108),  1592, 

1595. 
Grey  v.  Tubbs  (43  Cal.  359),  629. 
Gribben  v.  Maxwell  (34 Kan.  8),  72. 77. 
Grice  v.  Richardson  (3  App.  Cas.  319), 

1513,  1515. 
Grieb  v.  Cole  (60  Mich.  397),  451, 1240, 

1353. 
Griffeth    v.  Douglass  (73    Me.   532), 

202. 
Griffeth  v.  Wells  (3  Denio,  226),  1046. 
Griffin  v.  Colver  (16  N.  Y.  489),  1757, 

1760,  1779,  1790. 
Griffin  v.  Gratwick  Lumber  Co.  (97 

Mich.  557),  227. 
Griffin  v.  O'Neil  (48  Kan.  117),  278. 
Griffith  v.  Field  (105  Iowa,  362),  1288. 
Griffith  v.  Strand  (19  Wash.  686),  880, 

936. 
Griffiths  v.  Perry  (1  El.  &  El.  680), 

1513,  1514,  1515,  1516, 1518. 
Griffiths  v.  Sears  (112  Pa.  St.  523), 

1031. 
Griffiths  Co.  v.  Humber  (2  Q.  B.  414), 

426,  453. 
Griggs  v.  Day  (136  N.  Y.  152),  1786. 
Grigsby  v.  Stapleton  (94  Mo.  423),  869, 

935. 
Grimboldby  v.  Wells  (L.  R.  10  C.  P. 

391),  1377,  1402. 
Grimes  v.   Van  Vechten  (20  Mich. 
410),  365. 


TABLE    OF   CASES    CITED. 


CXI 


References  are  to  Becttons:  Vol.  I,  §f  1-797;  Vol.  TI.  §§  798-1850. 


Grimsley  v.  Hooker  (3  Jones  Eq.  4), 

960. 
Giinnell  v.  Spike  (128  Masa  25),  1419. 
Griswold  v.  Butler  (3  Conn.  227),  69. 
Griswold  v.  Gebbie  (126  Pa.  St.  358), 

875 
Griswold  v.  Sabin  (51  N.  H.  107),  875. 
Griswold  v.  Scott  (86  Vt  550),  1190, 

1198. 
Grist  v.  Williams  (111  N.  a  53),  1631. 
Grizewood  v.  Blane  (11  Com.  a  526), 

1031. 
Groal  v.  Gile  (51  N.  Y.  431).  199,  516, 

51ft 
Groetzinger  v.  Kami  (185  Pa  St.  578), 

1238. 
Grofl  v.  Belche  (62  Mo.  W0),  '■ 
Grosh  v.  [vanhoe  Land  Co.  (95  Va 

161),  B6a 
Gross  v.  Criss  (3  Gratfc  262),  1264 
Gross  v.  Gross  (94  Wis.  1 1 1.  947. 
Gross  v.  Jordan  (83  M".  880),  569. 
Gross  v.  Kierski  (41  Cal   ill),  1302, 

1795. 
Groswnorv.Magill  (87  E1L239),  1136. 
Grosvenor  v.  Phillips  2  11.11,  1 17),  752. 
GrotoD  v.  Waldo borough  (11  M&3 

1042, 
Grout  v.  Hill  (4  Gray,  301),  000,  1551, 

1592. 
( :  rove  v.  Donaldson  (15  Pa.  St.  128), 

L106. 
< .  rover  &  Baker  Sew.  Mach.  Co.  v. 

Polhemus  (34  Mich.  247),  1445. 
Groves  v.  Buck  (3  Maule  &  SeL  178), 

298,  300,  305 
Gruman  v.  Smith  (81  N.  Y.25), 
Grymes  v.  Blofield  (Croke,  Eliz.  541), 

I486. 
Guardians  of  the  Poor  v.  Petch  (10 

Exoh.  610),  235. 
Guckenheimer  v.  Angevine  (81  N.  Y. 

394),  914,  918. 
Guerdon  v.  Corbett  (87  111.  272).  1147. 
Guernsey  v.  Lumber  Co.  (87  Cal.  249), 
L391. 


Guest  v.  Diack  (29  Nova  Scotia,  504), 

571. 
Guetzkow  v.  Andrews  (92  Wis.  214), 

1766,  1767. 
Guice  v.  Sanders  (21  La.  Ann.  403), 

960. 
Guilford  v.  McKinley  (61  Ga.  232), 

570. 
< ;  nil  ford  v.  Smith  (30  Vt.  49),  1586. 
Guilford  v.  Stacer  (53  Ga.  618).  1453, 
Guillaume  v.  Transportation  Co.  (100 

N.  Y.  491),  887. 
Guillon  v.  Kamsliaw(169Pa.St.  463), 

1638,  L674  1090. 
Gulf.  etc.  Ry.   Co.  v.  Settegast  (79 

Tex.  256),  128. 
Gulledge   v.   Slayden-Kirksey   Mills 

Misa  297  .924. 
Gumm  v.  Tyrie  (33  L.  J.  Q.  B.  97), 

785,  787. 
Gunderson  v.  Richardson  (56  Iowa, 

56),  1056. 
Cun  n  v.  Blockow,  Vaughan  &  Co. 

(10  Ch.  491),  1504 
Gunther  v.  Atwell  (19  Md.  157).  1320, 

L321. 
Gunther  v.  Ullrich  (82  Wis.  222),  875, 

Gurnev  v.  Atlantic,  etc.  Ry.  Co.  (58 

X.  Y.  358),  1320,  1391,  1392,1395. 
Gurney  v.  Collins  (64  Mich.  158),  564 
Gurney,  In  re,  Ex  parte  Hughes  (67 

L.  T,  X.  S.,  598),  1574.  1570. 
Gurney   v.   Womersley  (4  El.  &  Bl. 

133),  838,  1849. 
Gurrey  v.  Behrend  (3  EL  &  Bl.  633), 

166. 
Gustine  v.  Phillips  (38  Mich.   674), 

1541. 
Gutbrie  v.  Morris  (22  Ark.  411),  123. 
Guthrie  v.  Murphy  (4  Watts,  80).  127. 
Gutbrie  v.  Russell  (40  Iowa,  209),  1797. 
Gwillim  v.  Daniell  (2  Cromp.,  M.  & 

R.  01),  1109. 
Gwinn  v.  Simes  (61  Mo.  335),  1057, 


CX11 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-707;  Vol.  IT,  §§  70S  1T0. 


Gvvyn  v.  Richmond  &  Danville  R.  R. 

Co.  (85  N.  C.  429),  1533. 
Haacke  v.  Knights  (76  Md.  429),  1057. 
Haak  v.  Lindermann  (64  Pa.  St.  499), 

580,  600. 
Haas  v.  Myers  (111  I1L  421),  247,  250. 
Haase  v.  Mitchell  (58  Ind.  213),  914, 

916. 
Haase  v.    Nonnernacher  (21    Minn. 

486),  1156,  1392. 
Hackbarth  v.  Wollner  (88  Wis.  476), 

1200. 
Hacker  v.  Monioe  (56  111.  App.  532), 

906. 
Hadcock  v.   Osmer  (153  N.  Y.  601), 

875. 
Hadley  v.  Baxendale  (9  Exch.  341), 

1757,  1760. 
Hadley  v.  Clinton  Co.  Imp.  Co.  (13 

Ohio  St.  502),  1311. 
Haenu  v.  Bleisch  (146  111.  262),  893. 
Hagany  v.   Herbert  (3  Houst.  628), 

960. 
Hagee  v.  Grossman  (31  Ind.  223),  879. 
Hagerman  v.  Buchanan  (45  N.  J.  Eq. 

292),  973. 
Haggerty  v.  Palmer  (6  Johns.  Ch.  438), 

891,  1437. 
Hasins  v.  Combs  (102  Ky.  165),  210, 

211,  488,  492,  496,  723,  960,  991, 1198. 
Hague  v.  Porter  (3  Hill,  141).  738. 
Hahn  v.  Doolittle  (18  Wis.  196),  1235, 

1255. 
Hahn  v.  Fredericks  (30  Mich.  223). 

499,  516,  520,  700. 
Haight  v.  McVeagh  (69  111.  624),  138. 
Haille  v.  Smith  (1  B.  &  P.  563),  788. 
Haines  v.  Pohlmann  (25  N.  J.  Eq.  179), 

1453. 
Haines  v.  Tucker  (50  N.  H.  307),  1092, 

1148,  1643, 1682. 
Haldeman  v.  Duncan  (51  Pa.  St.  66), 

714. 
Hale  v.  Brown  (11  Ala.  87),  90. 
Hale  v.  Gerrish  (8  N.  H.  374),  121. 
.Hale  v.  Hess  (30  Neb.  42),  1690. 


Hale  v.   Huntley  (21  Vt.   147),  508, 

7li  1. 
Hale  v.  Milwaukee  Dock  Co.  (29  Wis. 

482),  1194. 
Hale  v.  Patton  (60  N.  Y.  233),  1417. 
Hale  v.  Phil  brick  (42  Iowa,  81),  934. 
Hale  v.  Trout  (35  Cal.  229),  1709. 
Haley  v.  Bellamy  (137  Mass.  357),  212. 
HalflE  v.  Allyn  (60  Tex.  278),  1572,  1576, 

1590. 
Hall   v.   Aitkin  (25  Neb.  360),  1304, 

1797. 
Hall  v.  Butterfield  (59  N.  H.  354),  107, 

109. 
Hall  v.  Conder  (2  Com.  B.,  N.  S.,  53), 

213,  834,  1301,  1309,  1311. 
Hall  v.  Costello  (48  N.  H.  176),  1004. 
Hall  v.  Dimond  (63  N.  H.  565),  1582, 

1583. 
Hall  v.  Glass  (123  Cal.  500),  202. 
Hall  v.  Green  (1  Houst.  546),  755. 
Hall  v.  Harper  (17  111.  82),  189. 
Hall  v.  Hinks  (21  Md.  406),  600. 
Hall  v.  Jones  (21  Md.  439),  101. 
Hall  v.   Morrison  (92  Ga.  311),  492, 

1200. 
Hall  v.  Pillsbury  (43  Minn.  33),  26. 
Hall  v.  Plassan  (19  La.  Ann.  11),  1320. 
Hall  v.  Richardson  (16  Md.  396,',  775. 
Hall  v.  Stevens  (40  Hun,  578),  541. 
Hall  v.  Storrs  (7  Wis.  253),  1460. 
Hall  v.  Warren.  (9  Ves.  605),  73. 
Hall  &  Brown  Mach.  Co.  v.  Brown 

(82  Tex.  469),  603,  658,  1407. 
Hallacher  v.  Henlein  ( —  Tenn.  Ch. 

App.  — ),  905,  906. 
Hallen  v.  Runder  (1  Cr.,  Mees.  &  Ros. 

266),  333. 
Hallenbach  v.  Cochran  (20  Hun,  416), 

382. 
Hallett  v.   Novion   (14  Johns.  273), 

1045. 
Hallgarten  v.  Oldham  (135  Mass.  1), 

757,  788,  964.  984, 1194. 
Halliday  v.  Hamilton  (11  Wall.  564), 

51. 


TABLE    OF    CASKS    CITED. 


CX111 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Halliday  v.   Miller  (29  W.  Va.  424), 

955. 
Hallock  v.  Alford  (61  Conn.  194),  390. 
Hallowell  &  Augusta  Bank  v.  How- 
ard (13  Mass,  335),  1437. 
Halls  v.  Thompson  (1  S.  &  M.  443), 

879. 
Halsell  v.  Musgrave  (5  Tex.  Civ.  App. 

176),  931. 
Halsey  v.  Warden  (25  Kan.  128),  788 
Halterline  v.  Rice  (62  Barb.  59 

510,  575. 
Haltiwanger  v.  Tanner  (103  Ga.  314), 

ML 
Ham  v.  Cerniglia  (73  Misa  290),  569. 
Hambrick  v.  Wilkins  (65  Miss.   lv<. 

92L 
Hamburger  v.  Rodman  (9  Daly,  93), 

1515. 
Hamet  v.  Dundass  (4  Pa.  St  178 
Unmet  v.  Letcher  (37  Ohio  St.  356), 

1 1'.i.  269,  887. 
Hamilton  v.  Calhoun  (2  Watts,  139), 

784,  1124, 

Hamilton  v.  Gordon  (22  Oreg.  557), 

508,  523. 
Hamilton  v.  Insurance  Co.  (5  Barr, 

339  .  247. 

Hamilton  v.  Magill  (12  L.  R.  Ir.  186), 

177a 
Hamilton  v.  Russel  (1  Cranch,  309), 

960. 
Hamilton  v.  Scull  (25  Mo.  165),  947. 
Hamilton  v.  Singer  Mfg.  Co.  (54  111. 

370),  628,629. 
Hamilton  v.  Terry  (11  C.  B.  954),  234. 
Hamilton-Brown  Shoe  Co.  v.  Lyons 

(6  Tex.  Civ.  App.  633),  924. 
Hamm  Brewing   Co.  v.  Young  (76 

Minn.  24(5),  1029. 
Hammacher  v.  Wilson  (26  Fed.  R 

339  ,  1080. 
Hammer   v.   Schoenf elder  (47  Wis. 

455),  IT?:!. 
Hammett  v.  Linneman  (48  N.  Y.  399), 

541,  543,  549,  552. 


Hammond  v.  Anderson  (1  Bos.  &  Pul. 

N.  R,  69),  490,  1499. 
Hammond  v.  Bussey  (20  Q.  B.  Div. 

79),  1769,  1770. 
Hammond  v.  Pennock  (61  N.  Y.  145), 

918. 
Hanauer  v.  Doane  (12  Wall.  342),  1013, 

1016,  1024. 
Hanauer  v.  Woodruff  (82  U.  S.  439), 

1024. 
Hance  v.  Boom  Co.  (70  Mich.  227), 

549. 
Hancock  v.  New  York  L.  Ins.  Co. 

(Fed.  Cas.  No.  6011),  1090. 
Hands  v.  Burton  (9  East,  439),  16. 
I  lands  v.  Slaney  (8  T.  R.  578),  132. 
Handy  v.  Globe  Pub.  Co.  (41  Minn. 

188),  1003,  1048,  1057. 
Handy  v.  Waldron  (19  R.  I.  618),  882, 

937. 
Hanford  v.  Archer  (4  Hill,  271),  960. 
Hanger  v.  Evins  (38  Ark.  334),  1254. 
Banks  v.  Deal  (3  McCord,  257),  124. 
Hanks  v.  McKee  (2  Littell,  227),  1272, 

1345. 
Hanna  v.  Mills  (21  Wend.  90),  1664. 
Hanover  Nat.  Bank  v.  Johnson  (90 

Ala.  549),  1050. 
Hansen  v.  Baltimore,  etc.  Co.  (86  Fed. 

R.  832),  942. 
Hansen  v.  Consumers'  Steam  Heat- 
ing Co.  (73  Iowa,  77),  1148. 
Hansen  v.  Gaar  (63  Minn.  94),  1273. 
Hansen  v.  Kirtly(ll  Iowa,  565),  1079, 

1389. 
Hanson    v.  Buckner  (4   Dana,  251), 

972. 
Hanson  v.  Busse  (45  111.  496),  1237, 

1320. 
Hanson  v.  Edgerly  (29  N.  H.  343), 

1272. 
Hanson  v.  Hartse(70  Minn.  272),  1356, 

1357. 
Hanson  v.  Marsh  (40  Minn.  1),  438. 
Hanson  v.  Meyer  (6  East,  614),  515, 

524,  1437. 


CX1V 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-707;  Vol.  II,  §§  7§8~1850. 


Hanson  v.  Rolter  (64  Wis.  622),  293. 

356,  419. 
Hapgood  v.  Rosenstock  (23  Fed.  R. 

86;,  1729. 
Hapgood  v.  Shaw  (105  Mass.  276),  1121. 
Happy  v.  Mosher  (47  Barb.  501),  755. 
Harber  v.  Moffat  Cycle  Co.  (151  111. 

84),  1389,  1390. 
Hardeli  v.  McClure  (2  Pin.  289),  314, 

324. 
Hardeman  v.  De  Vaughn  (49  Ga.  596), 

51,  752. 
Hardenberg  v.  Bacon  (33  Cal.  356), 

347. 
Hardenbrook  v.  Sherwood  (72  Ind. 

403),  72,  73. 
Hardesty  v.  Newby  (28  Mo.  567),  1462. 
Harding  v.  Coburn  (12  Mete.  333).  636. 
Harding  v.  Larkin  (41  111.  413),  1798. 
Harding  v.   Lewenberg  (174    Mass. 

394),  637,  642. 
Harding  v.  Manard  (55  Mo.  App.  364), 

491,  492. 
Harding  v.  Metz  (1  Tenn.  Ch.  610), 

554. 
Harding  Paper  Co.  v.  Allen  (65  Wis. 

576),  1582,  1583. 
Hardman  v.  Booth  (1  H.  &  C.  803), 

149,  268,  269,  887. 
Hare  v.  Gibson  (32  Ohio  St.  33),  184. 
Hargous  v.  Stone  (5  N.  Y.  73),  1320, 

1321,  1340. 
Harkey  v.  Cain  (69  Tex.  146),  645. 
Harkness  v.  Russell  (118  U.  S.  663), 

564),  566,  583,  599. 
Harlan  v.  Ely  (68  Cal.  522),  1460. 
Harlow  v.  Putnam  (124  Mass.  553), 

834. 
Harman  v.  Anderson  (2  Camp.  243), 

380,  1493. 
Harman  v.  Fisher  (1  Cowp.  117),  1592. 
Harman  v.  Reeve  (18  G  B.  587),  283, 

350. 
Harmon  v.  Goetter  (87  Ala.  325),  613. 
Harmon  v.  Hawkins  (18  Mont.  525), 

960. 


Harmony  v.  Bingham  (12  N.  Y.  99), 

1103. 
Harp  v.  Guano  Co.  (99  Ga.  752),  603. 
Harper  v.  Harper  (85  Ky.  160),  94a 
Harper  v.  Harvey    (4    W.   Va.    539), 

1455. 
Harper  v.  People  (2  Colo.  App.  177), 

649. 
1  In  i  per  v.  Ross  (10  Allen,  332),  40. 
Harper  v.  Young  (112  Pa.   St.    419), 

1031. 
Harralson  v.  Stein  (50  Ala.  347),  1162. 
Harran  v.  Foley  (62  Wis.  584),  278. 
Harrell  v.  Goodwin  (102  N.  C.  330), 

599,  603. 
Harrell  v.  Miller  (35  Miss.  700),  336. 
Harriman   v.   Harriman    (12    Gray, 

341),  1419. 
Harrington  v.  King  (121  Mass.  269), 

589,  592. 
Harrington  v.  Mayor  (10  Hun,  248), 

1169. 
Harrington  v.   Rutherford   (38   Fla. 

321),  870. 
Harrington  v.  Smith  (138.  Mass.  92), 

1275. 
Harris,  Ex  parte  (Law  R.  7  Ch.  App. 

593),  238. 
Harris  v.  Amoskeag  Lumber  Co.  (97 

Ga.  465),  228. 
Harris  v.  Harris  (23  Gratt.  737),  970. 
Harris  v.  Hart  (6  Duer,  606),  1586. 
Harris  v.  Lynn  (25  Kan.  281),  1307. 
Harris  v.  McMurray  (23  Ind.  9),  881. 
Harris  v.  Pence  (93  Iowa,  481),  964. 
Harris  v.  Pratt  (17  N.  Y.  249),  1546, 

1559,  1564,  1579,  1612.     ' 
Harris  v.  Rowland  (23  Ala.  644),  1795. 
Harris  v.  Runnels  (12  How.  80),  1045, 

1046. 
Harris  v.  Smith  (3  Serg.  &  R.  20),  542, 

546,  554. 
Harris  v.  Tenney  (85  Tex.  254),  1571, 

1590,  1595. 
Harris  v.  Tumbriclge   (83  N.  Y.   92), 

1034. 


TABLE   OF    CASES    CITED. 


CXV 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Harris  v.  Waite  (51  Vt.  481),  1347. 
Harrison  v.  Bailey  (14  S.  C.  3:54).  947. 
Harrison  v.  Fortlage  (161  U.  S.  57). 

6.14. 
Harrison  v.  Hicks  (1  Port.  423),  1467. 
Harrison  v.  Le  Gore  (109  Iowa,  618), 

!  153,  1459. 
Harrison  v.  McCormiek  (89  Cal.  327), 

446,  447,  1327. 
Harrison  v.  Otley  (101  Iowa,  652),  64 
Harrison  v.  Ross    (44   N.   Y.    Super. 

230),  1451. 
Harrod  v.  Myers  (21  Ark.  592 1,  79. 
Harrold  v.  Bar  wise  (10  Tex.  Civ.  A  pp. 

138),  .-.fit. 
Harrow  Spring  Co.  v.  Whipple  Har- 
row Co.  (90  Mich.  147),  1130,  1255, 

IT'.U,  1844 
Hart  v.  Barney,  etc.  Mfg.  Co.  (7  Fed. 

l;.  543),  578. 
Hart  v.  Boiler  (15  Serg.  &   R.   162), 

1 123. 
Hart  v.  Burton  (7  J.  J.  Marsh.),  322. 
Hart  v.  Bush  (EI.,  Bl.  &  El.  494),  1181, 

1496. 
Hart  v.  Carpenter  (24  Conn.  426),  32, 

599. 
Hart  v.  Deamer  (6  Wend.  497),  69. 
Hart  v.  Manufacturing  Co.   (7  Fed. 

R.  543),  650. 
Hart  v.  Mills   (15   M.  &  W.  85).  242, 

746,  1158,  1160. 
Hait  v.  Moulton  (104  Wis.  349),  904, 

906. 
Hart  v.  Prater  (1  Jur.  623),  132. 
Hart  v.  Tyler  (15  Pick.  171).  388. 
Hart  v.  Woods  (7  Black f.  568),  461. 
Hart  v.  Wright  (17  Wend.  267),  1311, 

1356,  1357. 
Hartford  Sorghum  Mfg.  Co.  v.  Brush 

(43  Vt.  528),  667. 
Hartford  &  N.  H.  R.  Co.  v.  Jackson 

(24  Conn.  514),  274. 
Hartford  F.  Ins.  Co.  v.  Kirkpatrick 

(111  Ala.  450 1.  879, 
Harting  v.  Jockers  (136  111.  627),  955. 


Hartje  v.  Collins  (46  Pa.  St.  268),  1081. 
Hartley  v.  Tapley  (2  Gray,  565),  200. 
Hartlove  v.   Durham  (86  Md.   689). 

1107. 
Hartman  v.  Weiland  (36  Minn.  223), 

974. 
Hartshorn  v.  Williams  (31  Ala.  149), 

40. 
Hart  well  v.  Kelly  (117  Mass.  235),  333. 
Harvey  v.  Duffy  (99  Cal.  401),  753. 
Harvey  v.  Grabham  (5  A.  &  E.  61), 

147. 
Harvey  v.  Harris  (112  Mass.  32),  272, 

271. 
Harvey  v.  Merrill  (150  Mass.  1),  1031, 

1039. 
1  [arvey  v.  Stevens  (43  Vt.  653).  461. 
Harvey  v.  Tama  County  (63  Iowa, 

828),  1467. 
Harvey  v.  Varney  (98  Mass.  118),  947. 
Harvin  v.  Weeks  (11  Rich.  L.  601), 

947. 
Ha r wood  v.  Knapper  (50  Mo.   456), 

947. 
Harworth  v.  Truby  (138  Pa.  St.  222), 

1374. 
Hascall  v.  Life  Ass'n  (5  Hun,  151), 

451. 
Hash  v.  Lore  (88  Va.  716),  599,  603. 
1  raskell  v.  Rice  (11  Gray.  240),  1515. 
H  ask  ins  v.  Warren  (115  Mass.  514), 

.112.  .119,  .553,  1121,  1482,  1488,  1670. 
Haslack  v.  Mayers  (26  N.  J.  L.  284), 

1102. 
Hassard  v.  Hardison  (117  N.  C.  60), 

201,  1421,  1755. 
Hastelow  v.  Jackson  (8  B.  &  C.  221), 

999. 
Hastie  v.  Coutourier  (9  Ex.  102),  199, 

1430. 
Hastings  v.  Dollarhide  (24  Cal.  195), 

101. 
Hastings  v.  Lovering  (2  Pick.  214), 

1334,  1336. 
Hatch  v.  Bayley  (12  Cush.  27),  491, 

775. 


CXV1 


TABLE   OF   CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Hatch  v.  Douglass  (48  Conn.  116),  203, 

1031,  1035. 
Hatch  v.  Fowler  (28  Mich.  203),  499, 

516. 
Hatch  v.  Hatch  (60  Vt.  160),  121. 
Hatch  v.  Lincoln  (12  Cush.  31),  775. 
Hatch  v.  McBrien  (83  Mich.  159),  42. 
Hatch  v.  Oil  Co.  (100  U.  S.  124),  485, 

493,  1124. 
Hatcher  v.  Corner  (75  Ga.  728),  1433. 
Hatchkin  v.  Third  Nat.  Bank  (127  N. 

Y.  329),  906. 
Hatfield  v.  Reynolds  (34  Barb.  612), 

1453. 
Hathaway  v.  Bennett  (10  N.  Y.  108), 

197. 
Hathaway  v.  Haynes  (124  Mass.  311), 

792. 
Hatstat  v.  Blakeslee  (41  Conn.  301), 

984. 
Hauck  Cloth  Co.  v.  Brothers  (61  Mo. 

App.  381),  603. 
Hauser  v.  Beaty  (93  Mich.  499),  955. 
Hausman  v.  Nye  (62  Ind.  485),  358, 

365, 393. 
Havemeyer  v.  Cunningham  (35  Barb. 

515),  1740,  1755. 
Haven  v.  Emery  (33  N.  H.  66),  645. 
Haven  v.  Neal  (43  Minn.  315),  877. 
Haven  v.  Wakefield  (39  111.  509),  1079, 

1389. 
Havens  v.  Grand  Island  L.  &  F.  Co. 

(41  Neb.  153),  741. 
Havey  v.  Petrie  (100  Mich.  190),  941. 
Hawes  v.  Forster  (1  Mood.  &Rob.  368), 

468. 
Hawkes  v.  Dunn  (1  Cromp.  &  Jer. 

519),  1530. 
Hawkins  v.  Berry  (5  Gilm.  36),  1268. 
Hawkins  v.  Chace  (19  Pick.  502),  446, 

451,  453,  455,  456. 
Hawkins  v.  Graham  (149  Mass.  284), 

668. 
Hawkins  v.  Hersey  (86  Me.  394),  646. 
Hawkins  v.  Kansas  City  Hydraulic, 

etc.  Brick  Co.  (63  Mo.  App.  61),  964. 


Hawkins  v.  Pemberton  (51  N.  Y.  198), 

1235,  1237,  1238,  1244,  1334. 
Hawley  v.  Bibb  (69  Ala.  52),  1031. 
Hawley  v.  Keeler  (53  N.  Y.  114),  363, 

383,  391,  393,  421, 1097. 
Haxall  v.  Willis  (15  Gratt.  434),  524, 

529. 
Haycraft  v.  Creasy  (2  East,  92),  876, 

1223. 
Hayden  v.  Demets  (53  N.  Y.  426),  485, 

493,  542,  1618,  1682. 
Hayden  v.  Frederickson  ( —  Neb. ), 

1202. 
Hayden  v.  Reynolds  (54  Iowa,  157), 

1148. 
Hayes  v.  Colby  (65  N.  H.  192),  1455. 
Hayes   v.  Nashville  (47  U.  S.  App. 

713),  617,  629,  1640,  1680. 
Haynes  v.  Hunsicker  (26  Pa.  St.  58), 

964. 
Haynes  v.  Rudd  (102  N.  Y.  372),  1000. 
Haynie  v.  Robertson  (58  Ala.  37),  692. 
Hays  v.  Currie  (3  Sandf.  Ch.  585),  1437. 
Hays  v.  Jordan  (85  Ga.  741),  569,  570, 

629. 
Hays  v.  Midas  (104  N.  Y.  602),  909. 
Hays  v.  Mouille  (14  Pa.  St.  48),  1540, 

1559,  1571,  1604,  1610. 
Hays  v.  Pittsburgh,  etc.  Packet  Co. 

(33  Fed.  R.  552),  492,  520,  728,  750. 
Hays  v.  Weatherman  (14  Ind.  341), 

1664. 
Hazard  v.  Day  (14  Allen,  487),  1052. 
Hazard  v.  Fiske  (83  N.  Y.  287),  1194. 
Hazard  v.  Irwin   (18  Pick.    95),   875, 

1242,  1268. 
Hazard  v.  Loring  (10  Cush.  267),  39, 

40,  1327. 
Hazard  v.  New  England  Ins.  Co.  (1 

Sumn.  218),  199. 
Hazelton  v.  Weeks  (49  Wis.  661),  639. 
Hazelton  Boiler  Co.  v.  Fargo  Gas  & 

Electric  Co.  (4  N.  Dak.  365),  1242. 
Hazlehurst  Compress  Co.  v.  Boomer 

Compress  Co.  (2  U.  S.  App.  139), 

1251. 


TABLE    OF   CASES    CITED. 


CXY11 


References  are  to  sections:  Vol 

Head  v.  Goodwin  (37  Me.  181),  202. 
Head  v.  Miller  (45  Minn.  446).  50. 
Head  v.  Tattersall  (L.  R,  7  Exch.  7), 

677,  683,  684.  819. 
Headrick  v.  Brattian  (63  Ind.  438), 

202. 
Heald  v.  Builders'  Ins.  Co.  (Ill  Mass. 
•  38),  202. 

Heald  v.  Hendy  (89  Cal.  632),  188. 
Heard  v.  James  (49  Miss.  236),  639. 
Heath  v*  Randall  (4  Cush.  195  .  336, 

626,  627. 
Heath  v.  Stevens  (48  X.  EL  251),  109. 
Heath  v.  Van  Cott  (9  Wis.  516),  04;. 
Heath  v.  West  (28  N.  H  101),  109,  120. 
Heaton  r.  NelsoD  .74  Mich.  199),  953. 
Hebr/s  Case  (L.  R.  4  Eq.  9),  247.  275, 

276. 
Hedden  v.  Griffin  1 136  Mass.  229),  874. 
He  Iden  v.  Roberts  (134  Mass.  38),1162. 
Hedges  v.  Hudson  River  R.  Co.  (49 

X.  Y.  223),  1132. 
Hedgley  v.  Holt  (4  C.  &  P.  104),  1214. 
Hedman  v.  Anderson  (6  Neb.  392), 

952. 
Hedrick  v.  Strauss  (42  Neb.  485),  952. 
Heffron   v.  Arnisby  (61  Mich.  505  », 

437,  438. 
Hefner  v.  Haynes  (89  Iowa,  616),  823, 

1251. 
Hege  v.  Newsome  (96  Ind.  426),  1335, 

1393. 
Hegler  v.  Eddy  (53  Cal.  597),  569,  595. 
Heilbroner  v.  Douglass  (45  Tex.  403), 

1787. 
Heilbronn  v.  Herzog  (33  A  pp.  Div. 

311),  912. 
Heilbronn  v.  Herzog  (165  N.  Y.  98), 

1411. 
Heilbutt  v.  Hickson  (L.  R.  7  C.  P. 

488),  730,  1212.  1329.  1346.  1377. 
Heilman   v.  Pruyn   1122  Mass.  301), 

1828. 
Heilman  Milling  Co.  v.  Hotaling  ( — 

Ky.  — ),  1820. 
Heinberg  v.  Cannon  i^36  Fla.  601),  1196. 
i 


L  §§  1-797;  Vol.  II,  §§  798-1850. 

Heinbockle  v.  Zugbaum  (5  Mont.  344), 

599. 
Heine  v.  Anderson  (2  Duer,  318),  491. 
Heinekey  v.  Earle  (28  L.  J.  Q.  B.  79), 

1591. 
Heineman  v.  Newman  (55  Ga.  262), 

947. 
Heintz  v.  Burkhard  (29  Oreg.  55),  309. 
Heinz  v.  Transfer  Co.  (82  Mo.  233), 

1592. 
Heinze  v.  Marx  (4  Tex.  Civ.  App.  599), 

909. 
Heiser  v.  Mears  (120  N.  C.  443),  1690, 

1701. 
Heiskell  v.  Bank  (89  Pa.  St.  155),  792. 
Heisley  v.  Swanstrom  (40  Minn.  196), 

473. 
Heister  v.  Loomis  (47  Mich.  16),  1780. 
Heizer  v.  Kingsland  Mfg.   Co.   (110 

Mo.  605),  878. 
Hellams  v.  Abercrombie  (15  S.  C.  110), 

1053. 
Helms  v.  Green  (105  N.  C.  251),  953. 
Helsbaw  v.  Langley  (11   L.  J.  Ch., 

N.  S.,  17),  451. 
Helyear  v.  Hawke  (5  Esp.  72),  1294 
Hemmer  v.  Cooper  (8  Allen,  334),  937. 
Hemphill  v.  Miller  (75  111.  App.  488), 

918. 
Henderson  v.   Barnewell  (1  Y.  &  X 

387),  457. 
Henderson  v.  Gibbs  (39  Kan.  679),  924. 
Henderson  v.  Hart  (122  Cal.  332),  964. 
Henderson  v.  Hoke  (3  Dev.  L.  12),  975. 
Henderson  v.  Hunton  (26  Gratt.  926), 

978. 
Henderson  v.  Lacon  (L.  R.  5  Eq.  249), 

910. 
Henderson  v.  Waggoner  (2  Lea,  133), 

1013,  1025. 
Hendricks  v.  Mount  (2  South.  738), 

947. 
Hendrickson  v.  Back  (74  Minn.  90), 

1794. 
Hendry  v.  Benlisa  (37  Fla.  609).  1421. 
Hendy  v.  Dinkerhoff  (57  CaL  3],  645. 


cxvm 


TABLE    OF    CASES   CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  79S-1850. 


Hening  v.  Powell  (33  Mo.  468),  1081, 

1189. 
Henkel  v.  Greene  (125  N.  C.  489),  603. 
Henkle  v.  Smith  (21  111.  238),  1129, 

1130. 
Henline  v.  Hall  (4  Ind.  189),  492. 
Henry  v.  Conley  (48  Ark.  267),  1433. 
Henry  v.  True  (23  Ark.  417),  74,  77. 
Henry  v.  Patterson  (57  Pa.  St.  346), 

32,  580. 
Henry  v.  Ritenour  (31  Ind.  136),  65, 

90, 136. 
Henry  v.  Root  (33  N.  Y.  520),  121. 
Henshaw  v.  Robins  (9  Mete.  83),  1235, 

1275,  1334. 
Henthorn  v.  Fraser  (2  Ch.  27),  248,  258. 
Hentz  v.  Jewell  (20  Fed.  R.  592),  1039. 
Hentz  v.  Miller  (94  N.  Y.  64),  149. 
Hepner    v.   Haynes  (89   Iowa,   616), 

1807. 
Herman  v.  Haffenegger  (54  Cal.  161), 

914. 
Herndon  v.  Kimball  (7  Ga.  432),  977. 
Herndon  v.  Reed  (82  Tex.  647),  947. 
Herrick  v.  Carter  (56  Barb.  41),  14 
Herring  v.  Cannon  (21  S.  C.  212),  571, 

599.  603. 
Herring  v.  Hottendorf  (74  N.  C.  588), 

1456. 
Herring  v.  Skaggs  (62  Ala.  180),  1281, 

1282,  1292. 
Herring  v.  Wickham  (29  Gratt.  628), 

955. 
Herron  v.  Dibrell  (87  Va.  289),  1235, 

1242. 
Hersey  v.  Benedict  (15  Hun,  282),  909, 

910. 
Hershey  Lumber  Co.  v.  St.  Paul  Sash 

Co.  (66  Minn.  449).  358. 
Hersom  v.  Henderson  (21  N.  H.  224), 

1255. 
Hervey  v.  Dimond  (67  N.  H.  342),  588. 
Hervey   v.   Locomotive    Works    (93 

U.  S.  664),  46,  569,  649,  650. 
Heryford  v.  Davis  (102  U.  S.  235),  20, 

46,  49,  568,  569,  574,  583,  619,  650. 


Herzog  v.  Purdy  (119  Cal.  99),  1150, 

1163,  1165,  1401. 
Heseltine  v.  Siggers  (1  Ex.  850),  329. 
Hess,  Geo.  H.  Co.  v.  Dawson  (149  111. 

138),  1147. 
Hesseltine  v.  Stockwell  (30  Me.  237), 

642. 
Heugh  v.  Railway  Co.  (L  R.  5  Exch. 

51),  887. 
Hewes  v.  Jordan  (39  Md.  472),  367, 

369. 
Hewett  v.  Griswold  (43  111.  App.  43), 

960,  964. 
Hewison  v.  Guthrie  (2  Bing.  N.  C. 

755),  1481. 
Hewson  Supply  Co.  v.  Minn.  Brick 

Co.  (55  Minn.  530),  1736. 
Hexter  v.  Bast  (125  Pa.  St.  52),  875, 

932,  1224,  1237. 
Heyman  v.  Flewker  (13  Com.  B.,  N.  S., 

519),  169. 
Heyman  v.  Neale  (2  Camp.  337),  468. 
Heysham  v.  Dethre  (89  Pa.  St.  506), 

333. 
Heywood  v.  Heywood  (42  Me.  229), 

1440. 
Heyworth  v.  Knight  (17  C.  B.,  N.  S., 

298),  468. 
Hiatt  v.  Twomey  (1  Dev.  &  Bat.  Eq. 

315),  834. 
Hibblewhitev.  McMorine  (5  M.  &  W. 

462),  203. 
Hickey  v.  Thompson  (52  Ark.  234), 

138. 
Hickman  v.  Cantrell  (9  Yerg.  172), 

688. 
Hickman  v.  Dill  (39  Mo.  App.  246), 

1304,  1305,  1797. 
Hickman  v.  Haynes  (L.  R.  10  C.  P. 

598),  808,  1151,  1153,  1691,  1749. 
Hickman  v.  Richburg  (122  Ala.  638), 

619,  624. 
Hickman  v.  Shimp  (109  Pa.  St.  16), 

659,  660,  1384. 
Hickman  v.  Trout  (83  Va.  -478),  953. 
Hicks  v.  Smith  (77  Wis.  146),  336. 


TABLE    OF    CASES    CITED. 


CX1X 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  IT,  §§  798-1850. 


Hicks  v.  Whitmore  (12  Wend.  548), 

461. 
Higgins  v.  Delaware,  L.  &  W.  R.  Co. 

(60  N.  Y.  553),  1138. 
Higgins  v.  Kusterer  (41  Mich.  318), 

346. 
Higgins  v.  Lodge  (68  Md.  229),  953. 
Higgins  v.  Moore  (34  X.  Y.  417),  1446, 

1117. 
Higgins  v.  Murray  (73  N.  Y.  2."i2),  305, 

11S4,  1187. 
Higgins  v.  Senior  (8  M.  &  W.  834), 

•117,  455. 
Higgons  v.  Burton  (26  L.  J.  Exch. 

343),  149.  269,887. 
Higgs  v.  Thrale  (Oliphant,  71).  1270. 
High   v.  Berrett    (148    Pa.    St.  261\ 

1843. 
Highley  v.  Barron  (49  Mo.  103.  109. 
Hight  v.  Bacon  (126   Mass.    10 1,  121  I. 

1311,  1314,  1334,  1344,  1392. 
Hight  v.  Harris  (56  Ark.  93),  984,  991. 
Hight  v.  Ripley  (19  Mo.  137).  311. 
Hildreth  v.  O'Brien  (10  Allen,  104), 

40,  125.1 
Hill  v.  Ahem  (135  Mass.  158),  953. 
Hill  v.  Anderson  (5  Smedes  &  M.  210). 

110. 
Hill  v.  Arbbn  (34  L.  T.  125),  132. 
Hill  v.  Blake  (97  N.  Y.  216),  446,  473, 

652,  653,  1139,  1145. 
Hill  v.  Bowman  (35  Mich.  191),  970. 
Hill  v.  Freeman  (3  Cush.  257),  546. 
Hill  v.  Gray  (1  Stark.  434).  869. 
Hill  v.  Hill  (113  Mass.  103),  336,  1131. 
Hill  v.  McKay  (94  Cal.  5),  1012. 
Hill  v.  North  (34  Vt.  604).  1272 
Hill  v.  Nutter  (82  Me.  199).  599,  603. 
Hill  v.  Rewee  (11  Mete.  268),  831,  839, 

1846,  1850. 
Hill  v.  Smith  (1  Iowa,  70),  1051. 
Hill  v.  Smith  (32  Vt  433),  1736,  1741, 

1787. 
Hill  v.  Spear  (50  N.  H.  253),  739, 1013, 

1027. 
Hill  v.  Townsend  (69  Ala.  286),  569. 


Hiller  v.  Ellis  (72  Miss.  701),  879,  895, 

898. 
Hillestad  v.  Hostetter  (46  Minn.  393), 

1122,  1188. 
Hilliard  v.  Weeks  (137  Mass.  304),  328. 
Hillman  v.  Wilcox  (30  Me.  170),  1810. 
Hills  v.  Bannister  (8  Cow.  32),  1807. 
Hills  v.  Laming  (9  Exch.  256),  834. 
Hills  v.  Lynch  (3  Robt.  42),  746,  1182. 
Hills  v.  Rix  (43  Minn.  543),  446. 
Hillyer  v.  Bennett  (3  Edw.  Ch.  222), 

109. 
Hilton  v.  Eckersley  (6  El.  &  Bl.  47), 

208. 
Hilton  v.  Shepherd  (92  Me.  160),  121. 
Hilton  v.  Tucker  (39  Ch.  D.  669),  1197. 
Himes  v.  Kiehl  (154  Pa.  St.  190),  1807. 
Ilinchman  v.  Lincoln  (124  U.  S.  38), 

358,  369,  373,  376.  382,  395. 
Hinchman  v.  Point  Defiance  Ry.  Co. 

1  I  Wash.  349),  624. 
Hinchman  v.  Weeks  (85  Mich.  535), 

895. 
Hinckley  v.  Pittsburgh  Steel  Co.  (121 

U.   S.   264),  1081,  1097,  1702,  1704, 

1705. 
Hinde  v.  Liddell  (L.  R.  10  Q.  B.  265). 

1768,  1770. 
Hinde  v.  Whitehouse  (7  East,  558), 

369,  426,  461,  483,  484. 
Hinds  v.  Chamberlain  (6  N.  H.  225). 

1004. 
Hinds  v.  Kellogg  (1.3  N.  Y.  Supp.  922), 

305. 
Hine  v.  Manhattan  R.  Co.  (132  N.  Y. 

477).  936. 
Hine  v.  Roberts  (48  Conn.  267),  569, 

614,  620,  625,  629. 
Hinely  v.  Margaritz  (3  Pa.  St.  428), 

102. 
Hineman  v.  Matthews  (138  Pa.  St. 

204  \  638. 
Hinton  v.  Locke  (5  Hill,  437),  1264. 
Hirchfield  v.  Waldron  ^83  Mich.  116), 

138. 
Hires  v.  Hurrl  (39  N.  J.  L.  4),  711. 


cxx 


TABLE   OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Hirsch  v.  Steele  (10  Utah,  18),  564, 

588,  597. 
Hirsch mann  v.  Iron  Range  R.  R.  Co. 

(97  Mich.  384),  188. 
Hirschorn  v.  Canney  (98  Mass.  149), 

546,  554,  599. 
Hirshfield  v.  Waldron  (54  Mich.  649), 

1444,  1445. 
Hirth  v.  Graham  (50  Ohio  St.  57),  336. 
Hissam  v.  Parrish  (41  W.  Va.  686), 

1718. 
Hitchcock  v.   Galveston  (3  Woods, 

287),  1831. 
Hoadly  v.  House  (32  Vt.  179),  1805. 
Hoadly  v.  McLaine  (10  Bing.  482),  207, 

218,  438. 
Hoagland   v.  Hall  (38  N.  J.  L.  351), 

1309. 
Hoare  v.  Rennie  (5  H.  &  N.  19),  1141, 

1145. 
Hobart  v.  Littlefield  (13  R.  I.  341),  736, 

739,  740,  741,  742,  750,  779,  788, 1181. 
Hobart  v.  Young  (63  Vt.  363),  1235, 

1242,  1248,  1255,  1268. 
Hobbs  v.  Carr  (127  Mass.  532),  964. 
Hobbs  v.  Massasoit  Whip  Co.  (158 

Mass.  194),  1374,  1380. 
Hobbs  v.  Parker  (31  Me.  143),  880. 
Hobson  v.  Garringe  (1  Ch.  182),  646. 
Hochster  v.  De  la  Tour  (2  El.  &  Bl. 

678),  1089,  1090. 
Hockersmith  v.  Hanley  (29  Oreg.  27), 

1774. 
Hocking  v.  Hamilton  (158  Pa.  St.  107), 

1089,  1090,  1130. 
Hodge  v.  Tufts  (115  Ala.  366),  816, 

1395,  1805,  1844. 
Hodgeden  v.  Hubbard  (18  Vt.  504), 

907. 
Hodges  v.  Insurance  Co.  (4  Seld.  419), 

40. 
Hodges  v.  Kimball  (49  Iowa,  577),  51, 

752. 
Hodges  v.  Hurd  (47  111.  363),  964. 
Hodges  v.  Kowing  (58  Conn.  12),  449. 


Hodges  v.  Wilkinson  (111  N.  C.  56), 

1304. 
Hodgson  v.  Barrett  (33  Ohio  St.  63), 

543,  555. 
Hodgson  v.  Davies  (2  Camp.  530),  468, 

470. 
Hodgson  v.  Le  Bret  (1   Camp.  233), 

964 
Hodgson  v.  Loy  (7  T.  R.  440),  1526, 

1577. 
Hodgson  v.  Temple  (5  Taunt.   181), 

1012. 
Hodson  v.  Warner  (60  Ind.  214),  599. 
Hoe  v.  Sanborn  (21  N.  Y.   552),  869, 

1317,  1346,  1349,  1810. 
Hoffman  v.  Chamberlain  (40  N.  J.  Eq. 

663),  1794. 
Hoffman  v.  Culver  (7  111.  App.  450), 

524,  535. 
Hoffman  v.  Dixon  (105  Wis.  315),  1334, 

1354. 
Hoffman  v.  Gallaher  (6  Daly,  42),  666. 
Hoffman  v.  Junk  (51  Wis.  613),  970. 
Hoffman  v.  King  (58  Wis.  314),  1158. 
Hoffman  v.  Noble  (6  Mete.  68),  148. 
Hoffman  v.  Oates  (77  Ga.  701),  1311. 
Hoffman  v.  Strohecker  (7  Watts,  86), 

924. 
Hoffner  v.  Clark  (5  Whart,  545),  966. 
Hogan  v.  Shorb  (24  Wend.  458),  1452. 
Hogg  v.  Smith  (1  Taunt.  347),  1461. 
Hogins  v.  Plymton  (11  Pick.  97),  1245, 

1327.  1334. 
Hogue  v.  Mackey  (44  Kan.  277),  278. 
Hoit  v.  Underbill  (10  N.  H.  220),  121. 
Holbrook  v.  Armstrong  (10  Me.  31), 

678. 
Holbrook  v.  Connor  (60  Me.  578),  937. 
Holbrook  v.  Oberne   (56  Iowa,   324), 

179. 
Holbrook  v.  Vose  C6  Bosw.  76),  1586. 
Holbrook  v.  Wight  (24  Wend.    169), 

51,  752,  928. 
Holbrook  v.  Zinc  Co.  (57  N.  Y.  616), 

162. 


TABLE    OF    CASES    CITED. 


CXX1 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol  n,  §§  798-1850. 


Holcomb  v.  Noble  (69  Mich.  396),  8C3, 

875. 
Holcombe  v.  Ehrmantraut  (46  Minn. 

397),  953. 
Holden  v.  Upton  (134  Mass.  177).  1046. 
Holden  Steam  Mill  v.  Westervelt  (67 

Me.  446),  1162. 
Holdoni  v.  Aver  (110  111.  448),  875. 
Holland  v.  Adams  (103  Ga.  610),  603. 
Holland  v.  Barnes  (53  Ala.  83),  90. 
Holland  v.  Rea  (48  Mich.  218),  1168, 

163^1636,  1682. 
Holland  v.  Swain  (94  111.  154),  148. 
Holliday  v.  Marshall  (7  Johns.  211), 

2!::. 
Holliday  v.  Morgan  (1  E.  &  E.  1),  1270. 
Holliday  v.  McKinne  (22  Fla.  153), 

960. 
Hollingsworth  v.  Napier  (3  Cai.  182), 

380,  B87. 
llnllingsworth    v.    Swedenborg    (49 

lnd.  378),  186. 
Hollins  v.  Fowler  (L.  R,  7  Q.  B.  616), 

269. 
Holliway  v.  Holliway  (77  Mo.  392), 

948. 
Holloway  v.  Griffith  (32  Iowa,  409), 

1089. 
Holloway  v.  Jacoby  (120  Pa.  St.  583), 

1236,  1335,  1340.  1393,  1395,  1844 
Holly  Mfg.  Co.  v.  New  Chester  Water 

Co.  (48  Fed.  R  879),  646. 
Hoi  man  v.  Dord  (12  Barb.  336),  1810. 
Hoi  man  v.  Johnson  (1  Cowp.  341),  995, 

997. 
Holme  v.  Guppy  (3  M.  &  W.  387),  1106. 
Holmes  v.  Bailey  (92  Pa.  St.  57),  792, 

1566. 
Holmes  v.  Blogg  (8  Taunt,  508),  109. 
Holmes  v.  Briggs  (131  Pa,  St.  233), 

1425. 
Holmes  v.  Evans  (48  Miss.  247),  437. 
Holmes  v.  German  Bank  (87  Pa.  St. 

525  i,  792. 
Holmes  v.  Gregg  (66  N.  H.  621),  1375, 

1378. 


Holmes  v.  Rice  (45  Mich.  142),  95,  97. 
Holmes  v.  Tyson  (147  Pa.  St.  305),  1225, 

1242,  1244,  1247,  1268. 
Holroyd  v.  Marshall  (10  H.  L.  Cas. 

191),  202. 
Holt  v.  Holt  (57  Mo.  App.  272),  342. 
Holt  v.  Knowlton  (86  Me.  456),  603, 

605. 
Holt  v.  O'Brien  (15  Gray,*311),  1004. 
Holt  v.   Pie  (120  Pa,  St.   425),  1236, 

L375,  1377. 
Holt  v.  Ward  Clarencieux  (2 Strange, 

937),  97. 
Holt  Mfg.  Co.  v.  Ewing(109Cal.  353), 

619. 
11  ol t.,n  v.  Noble  (83  Cal.  7),  884,  936. 
Holsinger  v.  Nat.  etc.  Bank  (6  Abb. 

Pr.,  N.  S.,  292),  1461. 
Holz  v.  Peterson  (98  Iowa,  741),  1124. 
Home  Lightning  Rod  Co.  v.  Neff  (60 

Iowa,  138),  1320. 
Homer  v.  Dorr  (10  Mass.  26),  1204. 
Homes  v.  Crane  (2  Pick.  607),  380. 
Honck  v.  Muller  (7  Q.  B.  D.  92),  1141, 

1145. 
Hone  v.  Ammons  (14  111.  29),  1043. 
Honeyman  v.  Marryatt  (6  H.  L.  C. 

112),  228. 
Hooban  v.  Bidwell  (16  Ohio,  509),  483. 
Hoock  v.  Bowman  (42  Neb.  80),  875. 
Hood  v.  Bloch  (29  W.  Va.  244),  499, 

1213,  1311,  1340. 
Hood  v.  Fahnestock  (8  Watts,  489), 

977. 
Hood  v.  Manhatten  Ins.  Co.  (11  N.  Y. 

532).  761. 
Hood  v.  Railroad  Co.  (22  Conn.  1),  141. 
Hoofsmith  v.  Cope  (6  Whart.  53),  963. 
Hooper  v.  Story  (155  N.  Y.  171),  1819, 

1844. 
Hoopes  v.  Strasburger  (37  Md.  390), 

1423,  1427,  1431. 
Hooser  v.  Hunt  (65  Wis.  71),  953. 
Hoot  v.  Spade  (20  lnd.  326).  1794. 
Hooven,  etc.  Co.  v.  Burdette  (153  111. 

072),  603,  604. 


cxxn 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Hoover  v.  Maher  (51  Minn.  269),  746. 
Hoover  v.  Peters  (18  Mich.  51),  1356, 

1357. 
Hoover  v.  Tibbits  (13  Wis.  79),  1579, 

1580, 1586. 
Hope  Lumber  Co.  v.  Hardware  Co. 

(53  Ark.  196),  775,  964,  1181. 
Hopewell  Mills  v.  Taunton  Savings 

Bank  (150  Mass.  519),  646. 
Hopkins  v.  Appleby  (1  Stark.  477), 

908. 
Hopkins  v.  Bishop  (91  Mich.  328),  960. 
Hopkins  v.  Grinnell  (28  Barb.  533), 

1302. 
Hopkins  v.  Hitchcock  (14  C.  B.  65), 

1333. 
Hopkins  v.  Maxwell  (91  Me.  247),  599, 

603. 
Hopkins  v.  Stefan  (77  Wis.  45),  1058. 
Hopkins  v.  Tanqueray  (15  Com.  B. 

130),  859,  1225, 1247,  1311. 
Hopper  v.  Haines  (71  Md.  64),  1786. 
Hoppy  v.  Mosher  (48  N.  Y.  313),  1428. 
Hopson  v.  Boyd  (6  B.  Mon.  296),  69. 
Horbach  v.  Hill  (112  U.  S.  144),  973. 
Horn  v.  Indianapolis  Nat.  Bank  (125 

Ind.  381),  646. 
Horn  v.  Water  Co.  (13  CaL  62),  973. 
Horncastle  v.  Farron  (3  B.  &  Aid. 

497),  1481. 
Home  v.  Midland  Ry.  Co.  (L.  R.  7 

C.  P.  583),  1760,  1770,  1791. 
Home  v.  Walton  (117  111.  130),  1843. 
Horner  v.   Parkhurst  (71   Md.  110), 

1238,  1311. 
Horr  v.  Barker  (6  Cal.  489),  711. 
Horr  v.  Barker  (8  Cal.  603),  708. 
Horr  v.  Barker  (11  Cal.  393),  702. 
Horton  v.  Buffington  (105  Mass.  399), 

1053. 
Horton  v.  Green  (66  N.  C.  596),  1235, 

1240. 
Horton    v.   McCarty  (53    Md.    394), 

461. 
Hoskins  v.  Johnson  (5  Sneed,  469), 

1448,  1449. 


Hosmer  v.  Wilson  (7  Mich.  294),  1089, 

1090,   1091,   1092,   1093,  1106,   1701, 

1702. 
Hostetter  v.  Auman  (119  Ind.  7),  336. 
Hotchkiss   v.   Fortson   (7  Yerg.  67), 

86,  90. 
Hotchkiss  v.  Higgins  (52  Conn.  205), 

677,  678. 
Hotchkiss  v.  Hunt  (49  Me.  213),  809, 

964. 
Hot  ham  v.  East  India  Co.  (1  T.  R 

638),  1106. 
Houdlette  v.  Tallman  (14  Mo.  400), 

714. 
Hough  v.  Dickinson  (58  Mich.  89),  953. 
Houghtaling  v.  Ball  (19  Mo.  84),  397. 
Houghtaling  v.  Hills  (59  Iowa,  287), 

906. 
Houghton  v.  Carpenter  (40  Vt,  588), 

1237. 
Houghwort  v.    Boisaubin   (18  N.  J. 

Eq.  315),  1136. 
Hoult  v.  Baldwin  (67  Cal.  610),  1346. 
House  v.  Alexander  (105  Ind.  109),  98, 

107,  116,  117,  132. 
House  v.  Beak  (141  111.  290),  676,  682. 
House  v.  Fort  (4  Blackf.  293),  862, 

1229,  1237,  1242,  1268, 1810. 
Household   F.  Ins.    Co.  v.   Grant  (4 

Ex.  Div.  216),  247,  250,  258. 
Houser  &  Haines  Mfg.  Co.  v.  Har- 
grove (129  Cal.  90),  548,  599. 
Houston  v.  Cook  (153  Pa.  St.  43),  942. 
Houston,  etc.  Co.  v.  Mitchell  (38  Tex. 

85),  263, 
Hovey  v.  Chase  (52  Me.  304),  64,  72. 
Hovey  v.  Gow  (81  Mich.  314),  588. 
Hovey  v.  Hobson  (53  Me.  451),  72,  77, 

79. 
Howard   v.    Borden   (13  Allen,  299), 

373. 
Howard  v.  Daly  (61  N.  Y.  362),  1089. 
Howard  v.  Dwight  (8  S.   Dak.  398), 

964. 
Howard  v.  Emerson  (110  Mass.  320), 

1356,  1357. 


TABLE    OF    CASES    CITED. 


CXX111 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  79&-1850. 


Howard  v.  Harris  (8  Allen,  297),  16, 

297. 
Howard  v.  Hoey  (23  Wend.  350),  1340. 
Howard  v.  Sheward  (L.  R  2  C.  P.  148), 

1294. 
Howard  v.  Simpkins  (70  Ga.  322),  110, 

132. 
Howard  v.  Smedley  (140  Pa.  St.  81), 

668. 
Howard   v.    Wilmington   R.   R    Co. 

(1  Gill,  311),  1106. 
Howatt  v.  Davis  (5  Munf.  34),  1603. 
Howe  v.  Combs  (38  S.  W.  R  1052), 

887. 
Howe  v.  Hay  ward  (108  Mass.  54),  404, 

407. 
Howe  v.  Huntington  (15  Me.  350),  132. 
Howe  v.  Johnson  (117  Cal.  37),  964. 
Howe  v.  Palmer  (3  B.  &  Aid.  321), 

307. 
Howe  v.  Ward  (4  Me.  195),  970,  973. 
Howe  v.  Waysman  (12  Mo.  169),  977. 
Howe  Macli.  Co.  v.  Ballweg  (89  111. 

318),  1440. 
Howe  Mach.  Co.  v.  Bryson  (44  Iowa, 

159!,  1776,  1831. 
Howe  Mach.  Co.  v.  Willie  (85  111.  333). 

837,  839,  1850. 
Howell  v.  Berger  (19  N.  Y.  Misc.  315), 

925. 
Howell  v.  Boudar  (95  Va.  815),  49. 
Howell  v.  Coupland  (L.   R   9  Q.   B. 

462),  1100,  1101,  1103. 
Howell  v.  Pugh  (27  Kan.  702),  702. 
Hoyle  v.  Southern  Saw  Works  (105 

Ga.  123),  932. 
Hoys  v.  Tuttle  (8  Ark.  124),  1417. 
Hoyt  v.  Casey  (114  Mass.   397),  126, 

127,  129,  132. 
Hoyt  v.  Insurance  Co.  (26  Hun,  416), 

711. 
Hoyt  v.  Weiss  (10  Tex.  Civ.  App.  462), 

603. 
Hoyt  v.  Wilkinson  (57  Vt.  404),  107. 
Hubbard  v.  Bliss  (12  Allen,  590),  592, 

1302. 


Hubbard  v.  George  (49  111.  275),  1398. 
Hubbard  v.  Marshall  (50  Wis.   322), 

1255. 
Hubbard  v.  Moore  (24  La.  Ann.  591), 

1022. 
Hubbard  v.  Tenbrook    (124    Pa.    St. 

291),  188. 
Hubbell  v.  Flint  (13  Gray,  277),  -1019, 

1027. 
Hubbell  v.  Meigs  (50  N.  Y.  480),  910. 
Huber  v.  Guggenheim  (89  Fed.  R. 

598),  872,  900,  934. 
Huddleston  v.  Briscoe  (11  Ves.  583), 

228. 
Hudnall  v.  Paine  (39  Fla.  67),  599,  603. 
Hudnal  v.  Wilder  (4  McCord,  294), 

Dl.-,,  947. 
Hudnut  v.  Weir  (100  Ind.  501),  411. 
Hudson  v.  Bauer   Grocery  Co.    (105 

Ala.  200),  892,  901,  923. 
Hudson  v.  Germaine    Fruit   Co.   (95 

Ala.  621),  1375,  1377. 
Hudson  v.  King  (23  Bl.  App.  118, 139. 
Hudson  v.  Roos  (76  Mich.  173),  1387. 
Hudson  v.  Swan  (83  N.  Y.  552),  1502. 
Hudson  v.  Weir  (29  Ala,  294),  331. 
Hudson  Furniture  Co.  v.  Freed  Furn. 

Co.  (10  Utah,  31),  365. 
Hudson  Iron  Co.  v.  Alger  (54  N.  Y. 

173  s  18. 
Huebler  v.  Smith  (62  Conn.  186),  951, 

982,  984, 
Huff  v.  Hall  (56  Mich.  456),  13. 
Huff  v.  McCauley  (53  Pa.  St.  206),  336. 
Hughes  v.  Bray  (60  Cal.  284),  1320. 
Hughes  v.  Jones  (116  N.  Y.  61),  69, 

70,  71. 
Hughes  v.  Kelly  (40  Conn.  148),  599, 

628. 
Hughes  v.  Robertson  (1  T.  B.  Mon. 

215),  869,  935. 
Hughes  v.  Winship  Machine  Co.  (78 

Ga.  793),  892. 
Huguley  v.  Morris  (65  Ga.  666),  1281. 
Hugus  v.  Robinson  (24  Pa.  St.  9),  960, 

966,  98a 


CXX1V 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-707;  Vol.  II,  §§  798-1850. 


Hull  v.  Caldwell  (3  S.  Dak.  451),  1795. 
Hull  v.  Connolly  (3  McCord,  6),  127, 

129. 
Hull  v.  Ruggles  (56  N.  Y.  424),  1019, 

1027. 
Hull  v.  Sigsworth  (48  Conn.  258),  964. 
Hull  v.  South  (109  Ind.  315),  74,  76,  79. 
Hultz  v.  Gibbs  (66  Pa.  St.  360),  is  I. 
Humaston  v.  Telegraph  Co.  (20  Wall. 

20),  213,  674. 
Humbert  v.  Larson  (99  Iowa,  275), 

942. 
Humble  v.   Hunter  (12  Q.  B.   310), 

267. 
Humble  v.  Mitchell  (11  A.  &  E.  205), 

Humphrey  v.  Haskell  (7  Allen,  497), 

900. 
Humphrey  v.  Merriam  (32  Minn.  197), 

879. 
Humphreys  v.   Comline  (8  Blackf. 

516),  1314,  1356, 1357. 
Hundley  v.  Webb  (3  J.  J.  Marsh.  644), 

960. 
Hunt  v.  Bay  State  Iron  Co.  (97  Mass. 

279),  646. 
Hunt  v.  Boyd  (2  La.  109),  1424. 
Hunt  v.  Hayes  (64  Vt.  89),  184. 
Hunt  v.  Hecht  (8  Exch.  814),  369. 
Hunt  v.  Peake  (5  Cow.  475),  97. 
Hunt  v.  Sackett  (31  Mich.   18),  836, 

1302,  1306,  1794. 
Hunt  v.  Thurman  (15  Vt.  366),  1189. 
Hunt  v.  Wyman  (100  Mass.  198),  658, 

660,  670,  676,  1402. 
Hunter  v.   Agnew  (1  Fox  &  S.  15), 

124. 
Hunter  v.  Daniel  (4  Hare,  420).  1073. 
Hunter  v.  Giddings  (97  Mass.  41),  455. 
Hunter  v.  Jameson  (6  Ired.  252),  1281. 
Hunter  v.  Moul  (98  Pa.  St.  13),  1425. 
Hunter  v.  Wetsell  (57  N.  Y.  375),  419. 
Hunter  v.  Wetsell  (84  N.  Y.  549),  412, 

420,  1127,  1130.  1677. 
Huntington  v.  Chisholm  (61  Ga.  270), 

714. 


Huntington  v.  Hall  (36  Me.  501),  1302. 
Huntington  v.  Knox  (7  Cush.  371), 

268,  455. 
Huntington  v.  Lombard  ( —  Wash. 

— ),  1237,  1844. 
Huntington,  etc.  Coal  Co.  v.  English 

(86  Pa.  St.  247),  1787. 
Hurd  v.  Bickford  (85  Me.  217),  924. 
Hurd  v.  Fleming  (34  Vt.  169),  613. 
HurflE  v.  Hires  (40  N.  J.  L.  581),  702, 

705,  708,  711. 
Hurley  v.  Brown  (98  Mass.  545),  437. 
Hurley  v.  Watson  (68  Mich.  531),  1455. 
Hurry   v.    Mangles  (1    Campb.   452), 

1501,  1513. 
Hurst  v.  Bell  (72  Ala.  336),  202. 
Huschle  v.  Morris  (131  111.  587),  981. 
Hussey  v.  Home  Payne  (8  Ch.  Div. 

670),  228. 
Hussey  v.  Home-Payne  (4  App.  Cas. 

311),  448. 
Husted  v.  Craig  (36  N.  Y.  221),  1083. 
Husted  v.  Ingraham  (75  N.  Y.  251), 

1482. 
Huston  v.  Cantril  (11  Leigh,  136).  955. 
Huston  v.  Plato  (3  Colo.  402),  1272. 
Hutcheson  v.  Blakeman  (3  Met.  80), 

247. 
Hutchings  v.  Munger  (41  N.  Y.  155), 

606,  610,  628,  1458. 
Hutchings  v.  Nunes  (1  Moore's  P.  C, 

N.  S.,  243),  1537. 
Hutchins  v.  Gilchrist  (23  Vt.  82),  964. 
Hutchins  v.  Olcutt  (4  Vt.  549),  1424. 
Hutchins  v.   Weldin   (114  Ind.   80), 

102G. 
Hutchinson  v.  Bowker  (5  M.  &   W. 

535),  227,  228. 
Hutchinson  v.  Brown  (1  Clarke  Ch. 

408  >,  87. 
Hutchinson   v.    Commonwealth   (82 

Pa.  St.  472),  26,  702,  1158. 
Hutchinson  v.  First  Nat.  Bank  (133 

Ind.  271),  973. 
Hutchinson  v.  Ford  (9  Bush,  318),  199, 

200,  202. 


TABLE    OF    CASES    CITED. 


CXXV 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Hutchinson  v.  Hunter  (7  Barr,  140), 

702,  714. 
Hutchinson  v.  Kelly  (1  Rob.  123),  974. 
Hutchinson  v.  Sandt  (4  Rawle,  234), 

71. 
Hutchinson  Mfg.  Co.  v.  Pinch  (107 

Mich.  12),  1255. 
1  Luthmacher  v.  Harris  (38  Pa.  St.  491), 

273,  274. 
Huthmacher  v.  Lowman  (G6  111.  App. 

448),  905. 
Hutton  v.  Lippert  (8  App.  Cas.  304), 

46,  V.K 
Hutton  v.  Moore  (26  Ark.  382),  213, 

674. 
Huyett  &  Smith  Mfg.  Co.  v.  Gray 

(124  X.  C.  323),  1:535,  1817. 
Hyatt  v.  Boyle  (5  G.  &  J.  110),  1311, 

1312,  1323,  1337. 
Hyde  v.  Davis  (Oliphant,  453),  1070. 
Hyde  v.  Ellery  (18  Md.  496),  y24. 
Hyde  v.  Woods  (94  U.  S.  523),  197. 
Hyde  v.  Wrench  (3  Beav.  334),  229, 

230. 
Hydraulic  Eng.  Co.  v.  McHaffie  (4  Q. 

B.  Div.  670),  1129,  1134,  1763,  1770. 
Hyer  v.  Hyatt  (3  Crunch,  07(1  ,  122. 
Hyland  v.  Bohn  Mfg.  Co.  (92  Wis.  157), 

628. 
Hyland  v.  Sherman  (2  E.  D.  Smith, 

234),  1356,  1357. 
Hyman  v.  Cain  (3  Jones,  111),   122, 

123. 
Hynds  v.  Hays  (25  Ind.  31),  1004. 
[asigi  v.  Brown  (17  How.  183),  878." 
Iasigi  v.  Rosenstein    (65    Hun,   591), 

1182 
Ide  v.  Leiser  (10  Mont.  5),  449. 
Ide  v.  Stanton  (15  Vt.  685),  293,  425, 

438. 
Illinois   Land  Co.  v.  Bonner  (75  111. 

315),  97. 
Illinois  Linen  Co.  v.  Hough  (91  111. 

63),  207. 
Ilsley  v.  Stubbs  (9  Mass.  65),  1548. 
Imhoff  v.  Whitmer  (7  Casey,  243),  69. 


Imperial   Bank  v.  Dock  Co.  (5  Ch. 

Div.  195),  1535. 
Imperial  Land  Co.,  In  re  (L.  R.  7  Ch. 

App.  587),  247. 
Inchbald  v.  Western  Plantation  Co. 

(17  Com.  B.,  N.  S.,  733),  213,  1097. 
Indiana  Mfg.  Co.  v.  Hayes  (155  Pa, 

St.  160),  1374. 
Indianapolis  Co.  v.  Wilcox  (59  Ind. 

429),  107,  109,  116. 
Indianapolis,  etc.  Ry.  Co.  v.  Maguire 

(62  Ind.  140),  714. 
Industrial   Works    v.   Mitchell   (114 

Mich.   29),   1071,   1079,   1389,   1709, 

1829. 
Ingalls  v.  Herrick  (108  Mass.  351), 

960,  964,  965. 
Ingalls  v.  Miller  (121  Ind.  188),  883, 

1841. 
Inge  v.  Bond  (3  Hawks,  101),  1242, 

1268. 
Inglebright  v.  Hammond  (19  Ohio, 

337),  21,  22,  708. 
Ingledew  v.  Douglas  (2  Stark.  36),  124. 
Inglis  v.  Usherwood  (1   East,   515), 

1526,  1548,  1549. 
Irrgraham  v.  Union  Ry.  Co.  (19  R.  I. 

356),  1240,  1248. 
Ingrahara  v.  Wheeler  (6  Conn.  277), 

963. 
Ingram  v.  Rankin  (47  Wis.  406),  1786, 

1787. 
Ingram  v.  Wackernagle  (83  Iowa,  82), 

1636,  1638,  1643. 
Inslee  v.  Lane   (57  N.  H.  454),  1528, 

1540,  1571,  1579,  1588,  1595. 
Insurance  Co.  v.  Armstrong  (117  U. 

S.  591),  905. 
Insurance  Co.  v.  De  Wolf  (2   Cow. 

105).  543. 
Insurance  Co.   v.   Wright  (1   Wall. 

456).  1264. 
International,  etc.  R.  Co.  v.  Nichol- 
son (61  Tex.  550),  1743. 
International  Pavement  Co.  v.  Smith 
(17  Mo.  App.  264),  1259. 


CX  XVI 


TABLE  OF  CASES  CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II.  §§  70R-1S50. 


Ireland  v.  Johnson  (18  Abb.  Pr.  329), 

413. 
Ireland  v.  Livingstone  (L.  R»  2  Q.  B. 

99),  1158. 
Irish  v.  Pauley  (116  Cal.  xvi),  1129. 
Iron  Cliffs  Co.  v.  Buhl  (42  Mich.  86), 

703,  1158. 
Irons  v.  Kentner  (51  Iowa,  88),  20,  24, 

25. 
Iroquois  Furnace  Co.  v.  Wilkin  Mfg. 

Co.  (181  111.  582),  1351,  1395. 
Irvine  v.  Stone  (6  Cush.  508),  350. 
Irwin  v.  Thompson   (27  Kan.   643), 

1255, 1308. 
Irwin  v.  Williar  (110  U.  S.  499),  203, 

1031,  1032,  1039. 
Irwin   v.    Workman  (3  Watts,  357), 

1455. 
Isle  Royale  Mining  Co.  v.  Hertin%(37 

Mich.  332),  640. 
Ives  v.  Carter  (24  Conn.  392).  937. 
Ivory  v.  Murphy  (36  Mo.  534),  425,449. 
Jack  v.  Railroad  Co.  (53  Iowa,  401), 

1235, 1242. 
Jackson  v.  Allaway  (6  Man.  &  Gr. 

942),  1188. 
Jackson  v.  Allen  (120  Mass.  64),  834. 
Jackson  v.  Anderson  (4  Wend.  474), 

759. 
Jackson  v.  Anderson  (4  Taunt.  24), 

702.  711,  714. 
Jackson  v.  Armstrong  (50  Mich.  65), 

1843. 
Jackson  v.  Brown  (102  Ga.  87),  1427. 
Jackson  v.  Cleveland  (15  Mich.  94), 

947. 
Jackson  v.  Collins  (39  Mich.  557),  881. 
Jackson  v.  Crysler  (1  Johns.  Cas.  125), 

1072. 
Jackson  v.  Evans  (44  Mich.  510),  1787. 
Jackson  v.  King  (4  Cow.  207),  64,  65. 
Jackson   v.   Langston   (61   Ga.   392), 

1260. 
Jackson  v.  Lowe  (1  Bing.  9),  428. 
Jackson  v.  Mott  (76  Iowa,  265),  1235, 

1238,  1242,  1244,  1395. 


Jackson  v.  Myers  (18  Johns.  425),  970. 
Jackson  v.  Nichol  (5  Bing.  N.  C.  508), 

1577,  1578,  1610. 
Jackson  v.  Plyler  (38  S.  C.  496),  973. 
Jackson  v.  Tupper  (101  N.  Y.  515), 

419. 
Jaeger  v.  Kelley  (52  N.  Y.  274),  954 
Jaffray   v.   Moss  (41  La.  Ann.  548), 

892. 
Jaffray  v.  Wolf  (4  Okl.  303),  912, 1411. 
Jaggar  v.  Winslow  (30  Minn.  263), 

87a 
Jagger  Iron  Co.  v.  Walker  (76  N.  Y. 

521),  1428. 
James  v.   Adams  (16  W.  Va.   245), 

1092. 
James  v.  Adams  (3  W.  Va.  568),  1831. 
James  v.  Bird  (8  Leigh,  510),  1482. 
James  v.  Bocage  (45  Ark.  284),  1225, 

1247. 
James  v.  Griffin  (2  Mees.  &  W.  623), 

1577.  1591. 
James  v.  Isaacs  (12  C.  B.  791),  1466. 
James  v.  Marion  Fruit  Jar  Co.  (69 

Mo.  App.  207),  244,  246,  251. 
James  v.  Muir  (33  Mich.  223),  207,  208, 

438. 
James  v.  Patton  (6  N.  Y.  9),  456. 
James  v.  Plank  (48  Ohio  St.  255),  29. 
James  v.  Williams  (5  B.  &  Ad.  1109), 

226. 
Jameson  v.   Gregory  (4  Mete.  363), 

676,  682. 
Jamieson  v.  Indiana  Gas  Co.  (128  Ind. 

555),  1099. 
Jamieson  v.  Wallace  (167  111.   388), 

1031. 
Jamison  v.  Harbert  (87  Iowa,  186), 

1303. 
Jamison  v.  Simon  (68  Cal.  17).  356. 
Jandt  v.  Potthast  (102  Iowa,  223),  893. 
Janney  v.  Boyd  (30  Minn.  319),  1447. 
Janney  v.  Sleeper  (30  Minn.  473),  734, 

739,  1124,  1181. 
Jansen  v.  McCahill  (22  Cal.  563),  451. 
Janvrin  v.  Maxwell  (23  Wis.  51),  1198. 


TABLE    OF    CASES    CITED. 


CXXV11 


References  are  to  sections:  Vol.  I,  §§  1-707;  Vol.  n,  §§  798-1850. 


Jarecki  Mfg.  Co.  v.  Kerr  (165  Pa.  St. 

529),  1337.  1349. 
Jarrett  v.  Goodnow  (39  W.  Va.  602), 

1302. 
Jarvis  v.  Davis  (14  B.  Mon.  424),  960, 

964. 
Javrin  v.  Maxwell  (23  Wis.  51),  385. 
Jay  v.  Wilson  (91  Hun,  391),  668. 
Jefferson  v.  Querner  (30  L.  T.  807), 

1158. 
Jefford  v.  Ringgold  (6  Ala.  544),  103. 
Jeffrey  v.  Bigelow   (13  Wend.  518), 

935.  1825. 
Jeffrey  Mfg.  Co.  v.  Central  Coal  Co. 

(93  Fed.  R.  408),  1371. 
. I. 'Hiis  v.  Fitohbarg  R,  R.  Co.  (9:;  Wis. 

350),  1540,  1582,  L601,  L602. 
Jelks  v.  Barrett  (52  Ui-s.  315),  126. 
Jellett  v.  St.  Paul  Ry.  Co.  (30  Minn. 

265),  1786 
Jendevine  v.  Slade  (2  Esp.  572),  1242 
Jenkins   v.    Eichelberger   (4  Watts, 

121),  23,  50,  580,  1482. 
Jenkins  v.  Green  (27  Beav.  437),  264. 
Jenkins  v.  Jarrett  (70  N.  C.  255),  193. 
Jenkins  v.  Richardson  (6  J.  J.  Marsh. 

442).  207. 
Jenkinson  v.  Monroe  (61  Mich.  454), 

760. 
Jenks  v.   Fulmer  (160  Pa.  St.  527), 

l.V.ci. 
Jenks  v.  Howe  Sewing  Mach.  Co.  (34 

La.  Ann.  124D,  1629. 
Jenkyn  v.  Vaughn  (3  Drew.  419),  974. 
Jenkyns  v.  Brown  (14  Q.  B.  496),  779, 

782,  787. 
Jenkyns  v.  Usbprne  (7  Mann.  &  Gr. 

678),  1536,  1601. 
Jenner  v.  Smith  (L.  R.  4  C.  P.  270), 

730,  731. 
Jenner  v.  Walker  (19  L.  T.  398),  132. 
Jenness  v.  Iron  Co.  (53  Me.  20  .  227, 

229,  233,  239,  428. 
Jenness  v.  Wendell   (51   N.   H.   63), 

351. 
Jennings  v.  Carter  (2  Wend.  446),  966. 


Jennings  v.  Chenango    County  Ins. 

Co.  (2  Denio,  75),  12T2. 
Jennings  v.  Dunham    (60   Mo.   App. 

635),  407. 
Jennings  v.  Flanagan  (5  Dana,  217), 

508,  514,  532. 
Jennings  v.  Gage  (13  111.  610),  41,  923. 
Jennings  v.  Gratz(3  Rawle,  168),  1338. 
Jennings  v.  Throgmorton      (Ry.     & 

Moo.  251),  1022. 
Jennings  v.  Wilson  (71  Miss.  42),  599, 

603. 
Jensen  v.  Bowles  (8  S.  Dak.  570),  23. 
Jeraulds  v.  Brown  (64  N.  H.  606),  714. 
Jetton  v.  Tobey  (62  Ark.  84),  154,  156. 
Jewett  v.  Lincoln  114  Me.  116).  987. 
Jewett  v.  Warren  (12  Mass.  300),  380, 

382,  981,987,  1107. 
Joest  v.  Williams  (42  Ind.  565).  87. 
Johnson  v.  Bailey  il7  Colo.  59),  508. 
Johnson  v.  Baird  (3  Blackf.  153),  1125. 
Johnson  v.  Brooks  (93  N.  Y.  337),  1724, 

1727. 
Johnson  v.  Buck  (35  N.  J.  L.  338),  327, 

426,  Oil.  462 
Johnson  v.  Credit  Lyonnais  (2  C.  P. 

Div.  224),  169. 
Johnson  v.  Cuttle  (105  Mass.  447),  365, 

369. 
Johnson  v.  Dodgson  (2  M.  &  W.  653), 

393,  451,  460,  1181,  1496. 
Johnson  v.  Dooley  (65  Ark.  71),  1440, 

1442. 
Johnson  v.  Eveleth  (93  Mo.  306),  1526, 

1551,  1602. 
Johnson  v.  Farnum  (56  Ga.  144),  1482. 
Johnson  v.  Gibson  (4  E.    D.   Smith, 

231),  186. 
Johnson  v.  Gulick  (46  Neb.  817),  875. 
Johnson  v.  Hibbard   (29  Oreg.    184), 

731,  756,  1185. 
Johnson  v.  Holloway  (82  111.  334),  960. 
Johnson  v.  Hudson    (11    East,    180), 

1046.  1051. 
Johnson  v.  Hunt  (11  Wend.  139),  759, 

761. 


CXXV111 


TABLE    OF    CASES    CITED. 


Keferences  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Johnson  v.  Latimer  (71  Ga.  470),  1259. 
Johnson  v.  Laybourne  (56  Minn.  332), 

1307. 
Johnson  v.  Lines  (6  Watts  &  S.  80), 

127,  128, 132. 
Johnson  v.  MacDonald  (9  M.  &  W. 

600),  '652. 
Johnson  v.  McLane  (7  Blackf.  501), 

676,  908. 
Johnson  v.  Meyers  (34  Mo.  255),  1791, 

1798. 
Johnson  v.  Morley  (Hill  &  Den.  29), 

947. 
Johnson  v.  Oehrnig(95  Ala.  189),  1795. 
Johnson  v.  Powers  (65  Cal.  179),  1254. 
Johnson  v.  Railway  Co.  (3  C.  P.  D. 

499),  736. 
Johnson  v.  Raylton  (7  Q.  B.  Div.  438), 

1353. 
Johnson  v.  Reed  (9  Mass.  78),  804. 
Johnson  v.  Stephenson  (26  Mich.  63), 

227,  228. 
Johnson  v.  Stoddard  (100  Mass.  306), 

736. 
Johnson  v.  Stone  (40  N.  H.  197),  189. 
Johnson  v.  Stratton  (6  Tex.  Civ.  App. 

431),  909. 
Johnson  v.  Trinity  Church  (11  Allen, 

123),  431. 
Johnson  v.  Triplett  (66  Ark.  233),  904. 
Johnson  v.  Whitman  Agl.  Works  (20 

Mo.  App.  100),  816,  1805. 
Johnson  v.  Willis  (7  Gray,  164),  1053. 
Johnson  Railroad  Signal  Co.  v.  Union 

Signal  Co.  (51  Fed.  R.  85),  175. 
Johnson-Brinkman    Co.    v.    Central 

Bank  (116  Mo.  558),  543,  545,  555, 

1121,  1407,  1433. 
Johnson-Brinkman    Co.   v.  Railway 

Co.  (126  Mo.  344).  619. 
Johnston  v.  Browne  (37  Iowa,  200), 

24,  29. 
Johnston  v.  Cope  (3  H.  &  J.  89),  1319. 
Johnston  v.  Harvy  (2  Pen.  &  W.  82), 

955. 


Johnston  v.  Kershaw  (L.  R.  2  Exch. 

82),  1158. 
Johnston  v.  McConnell  (65  Ga.  129), 

1050. 
Johnston  v.  Trask  (116  N.  Y.  136),  145, 

328. 
Johnston  v.  Whittemore  (27  Mich. 

463),  588,  605,  628,  C29,  630. 
Johnston  v.  Wood  (19  Wash.  441),  599, 

603. 
Johnstone  v.  Marke  (19  Q.  B.  Div.  509), 

127. 
Johnstone  v.  Milling  (16  Q.  B.  Div. 

460),  1088,  1089,  1090. 
Joliff  v.  Bendell  (Ry.  &  Moo.  136),  1270. 
Jolliffe  v.  Collins  (21  Mo.  338),  834. 
Jonassohn  v.  Young  (4  B.  &  S.  296), 

1075,  1141. 
Jones  v.  Alley  (17  Minn.  269),  1254. 
Jones  v.  Berry  (33  N.  H.  209),  1047. 
Jones  v.  Brewer  (79  Ala.  545),  779. 
Jones  v.  Bright  (5  Bing.  533),  1344. 
Jones  v.  Broadhurst  (9    C.  B.   173), 

1466. 
Jones  v.  Brown  (167  Pa.  St.  395),  1411. 
Jones  v.  Bullitt  (2  Litt.  49).  1420. 
Jones  v.  Clark  (20  Colo.  353),  600,  693. 
Jones  v.  Comer  (5  Leigh,  350),  947. 
Jones  v.  Dow  (142  Mass.  130),  434. 
Jones  v.  Earl  (37  Cal.  630),  1606,  1611. 
Jones  v.  Foster  (175  III.  459),  875. 
Jones  v.  George  (61  Tex.  345),  1156, 

1209,  1334,  1392,  1774,  1824. 
Jones  v.  Gibbon  (8  Exch.  920),  1131. 
Jones  v.  Hetherington  (45  Iowa,  681), 

953. 
Jones  v.  Hoar  (5  Pick.  285),  1411. 
Jones  v.  Horn  (51  Ark.  19),  1786. 
Jones  v.  Jennings  (168   Pa.  St.  493), 

1690. 
Jones  v.  Jones  (8  M.  &  W.  431),  1602. 
Jones  v.  Just  (L.  R.  3  Q.  B.  197),  1213, 
1214,  1317,   1340,   1344,   1345,  1349, 
1817,  1818,  1819. 
Jones  v.  Kemp  (49  Mich.  9),  30. 


TABLE    OF   CASES    CITED. 


CXX1X 


References  are  to  sections:  Vol.  I,  ?§  1-797;  Vol.  n,  §§  79SM850. 


Jones  v.  Littledale  (6  Ad.  &  E.  486), 

447. 
Jones  v.  Marsh  (22  Vt.  144),  764. 
Jones  v.  McEwan  (91  Ky.  373),  1392. 
Jones  v.  Mechanics'  Bank  (29  Md. 

287),  358.  363,  14U2. 
Jones  v.   Murray  (3  T.  B.  Mon.  83). 

1357. 
Jones  v.  Padgett  (24  Q.  B.  Div.  6o0), 

1214.  1329,  1342.  1344. 
Jones  v.  Pearce  (25  Ark.  545),  520. 
Jones  v.  Perkins  (29  Miss,  139),  1417. 
Jones  v.  Phenix  Bank  (4  Seld.  228  . 

121. 

Jones  v.  Rahilly  (16  Minn.  320),  10. 
Jones  v.  Reynolds  (120  N.  Y.  213),  331, 

358,  360,  381. 
Jones  v.  Schneider  (22   Minn.  279), 

7 16. 
Jones  v.  Snider  (99  Ga.  276),  619. 
Jones  v.  Surprise  (64  X.  II.  213).  1028. 
Jones  v.  Taylor  (30  Vt.  42),  649. 
Jones  v.  United  States  (96  U.  S.  24), 

1103,1138. 
Jones  v.  Wasson  (3  Baxt.  211).  1325. 
Jones  v.  Williams  (7  M.  &  W.  493), 

428. 
Jones  v.  Wright  (71  111.  61),  671,  6S2. 
Joplin  Water  Co.  v.  Bathe  (41  Mo. 

A  pp.  2S5).  1357. 
Jordan  v.  Coffield  (70  N.  C,  110),  130, 

131.  132 
Jordan  v.  James  (5  Ohio,  88),  1612. 
Jordan  v.  Norton  (4  M.  &  W.  155), 

227.  228. 
Jordan  v.  Parker  (56  Me.  557),  924. 
Jordan  v.  Patterson  (67  Conn.  473), 

241,  246,  1760,  1762.  1763. 
Jordan  v.  Pickett  (78  Ala.  331),  884 
Jordan  v.  Stevens  (51  Me.  78),  872, 
Jordan  v.  Wells  (104  Ala.  383),  588. 
Jordan  v.  Wright  (45  Ark.  237),  186. 
Joseph   v.   Brandy  (112  Mich.    579). 

696. 
Joslin  v.  Cowee  (52  N.  Y.  90),  909. 
Joslin  v.  Giese  (59  N.  J.  L.  130),  1423. 


Josling  v.  Kingsford  (13  C.  B.  446), 

1333. 
Joslyn  v.  Grand  Trunk  Ry.  Co.  (51 

Vt.  92),  774.  1194. 
Journey  v.  Priestly  (70  Miss.  584),  599. 
Jowers  v.  Blandy  (58  Ga.  379),  583. 
Joy  v.  Bitzer  (77  Iowa,  73),  1268. 
Jov  v.  Sears  (9  Pick.  4).  1201. 
Joyce  v.  Adams  (S  N.  Y.  291),  498,  520, 

521. 
Joyce  v.  Swann  (17  C.  B.,  N.  S.,  84), 

218,  Is  1.  740,  77."),  779,  787. 
Judd  v.  Day  (50  Iowa.  247).  245. 
Judd  v.  Weber  (55  Conn.  267),  877. 
Jndkins  v.  Walker  (17  Me.  38),  109. 
Judson  v.  Lyford  (84  Cal.  505),  953. 
Justh  v.   Holliday  (2  Mackey,  346), 

1036. 
Justice  v.  Lang  (42  N.  Y.  493),  1450. 
Juzan  v.  Toulmin  (9  Ala.  662),  64,  65. 
Kadista  v.  Young  (108  111.  170),  1088, 

1089,  1090,  1707. 
Kalm  v.  Klabunde  (50  Wis.  235),  660. 
Kahn  v.  Walton  (46  Ohio  St.    195), 

1031,  1039. 
Kain  v.  Larkin  (131  N.  Y.  300),  972. 
Kain  v.  Old  (2  B.  &  C.  627),  1255. 
Kanaga  v.  Taylor  (7  Ohio  St.  134),  649. 
Kane  v.  Clough  (36  Mich.  436),  200, 

202. 
Kane  v.  Loder  (56  N.  J.  Eq.  268),  1305. 
Kane  v.  Roberts  (40  Md.  590),  976. 
Kansas  City  R.  Co.  v.  Coal  Co.  (97 

Ala.  705),  1433. 
Kase  v.  John  (10  Watts,  109),  1805. 
Kauffman  v.  Klang  1 16  Misc.  379),  603. 
Kaufman  v.  Schilling  (58  Mo.  218), 

711. 
Kaufman  Bros.  &  Co.  v.  Farley  Mfg. 

Co.  (78  Iowa,  679),  264. 
Kearley  v.  Thomson  (24  Q.  B.  Div. 

742),  999,  1002. 
Kearney  v.  Dovle  (22  Mich.  294),  1713. 
Kearnev  v.  Vaughan  (50  Mo.  284),  946. 
Kearney  Milling  Co.  v.  Union  Pacific 

Ry  Co.  (97  Iowa,  719),  901,  906,  911. 


cxxx 


TABLE    OF    CASKS    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Keats  v.  Lord  Cadogan  (10  C.  B.  591), 

869. 
Keck  v.  State  (12  Ind.  App.  119),  588, 

597,  1424. 
Keeder  v.  Murphy  (43  Towa,  413),  957. 
Keeler  v.  Field  (1  Paige,  312),  1437. 
Keeler  v.   Goodwin  (111  Mass.  490), 

714,  1514,  1516. 
Keeler  v.  Jacobs  (87  Wis.  545),  660. 
Keenan  v.  Stimson  (32  Minn.  377).  649. 
Kehr  v.  Smith  (20  Wall.  36),  975. 
Keil  v.  Healey  (84  111.  104),  1)5. 
Kein  v.  Tupper  (52  N.  Y.  550),  513, 

520,  532,  552,  1162. 
Keith  v.  Clark  (97  U.  S.  454),  1024. 
Keith  v.  Hirschberg  Optical  Co.  (48 

Ark.  138),  1291. 
Keith  v.  Hobbs  (69  Mo.  84),  834. 
Keiwert  v.  Meyer  (62  Ind.  587),  365. 
Kellam  v.  Brown  (112  N.  C.  451),  49. 
Kelley  v.   Cosgrove  (83  Iowa,   229). 

1053. 
Kelley  v.  Davis  (49  N.  H.  187),  186. 
Kelley  v.  Ohio  Oil  Co.  (57  Ohio  St, 

317),  347. 
Kelley  v.  Rowane  (33  Mo.  App.  440), 

1106. 
Keller  v.  Phillips  (39  N.  Y.  351),  183. 
Keller  v.  Ybarru  (3  Cal.  147),  224, 263. 
Kellogg  v.  Costello  (93  Wis.  232),  603. 
Kellogg  v.  Denslow    (14  Conn.   411), 

1395. 
Kellogg  v.  Lovely  (46  Mich.  131),  636. 
Kellogg  v.  Smith  (26  N.  Y.  18),  1453. 
Kellogg  v.  Turpie  (2  111.   App.   55), 

1411. 
Kellogg  v.  Turpie  (93  111.  265),  912, 1411. 
Kellogg  v.  Witherhead  (6  Thomp.  & 

C.  525),  305,  382. 
Kellogg  Bridge  Co.  v.  Hamilton  (110 

U.  S.  108),  1317,  1318,   1344,   1346, 

1349. 
Kellogg  Newspaper  Co.  v.  Peterson 

(162  111.  158),  964,  1197. 
Keily  v.  Mesier  (46  N.  Y.  Supp.  61), 

964. 


Kelly  v.  Solari  (9  M.  &  W.  54),  854. 
Kelly  v.  Upton  (5  Duer,  336),  41. 
Kelsea  v.  Haines  (41  N.  II.  246),  499, 

5H'.,  518. 
Kelsea  v.  Ramsey  &  Gore  Mfg.  Co. 

(55  N.  J.  L.  320),  756.  11*1,  1182, 1187. 
Kelsey  v.  Harrison  (29  Kan.  143),  906. 
Kelsey  v.  Kendall  (48  Vt,    24),   604, 

643. 
Kemp  v.  Balls  (10  Exch.  607),  1466. 
Kemp  v.  Falk  (7  App.  Cas.  573),  1566, 

L570,  1602. 
Kemp  v.  Freeman  (42  111.  App.  500), 

816,  1805,  1807. 
Kemper  Dry  Goods  Co.   v.   Kidder 

Savings  Bank  (72  Mo.  App.  226),  887. 
Kempner  v.  Colin  (47  Ark.  515 1-,  358. 
Kempner  v.  Churchill  (8  Wall.  362), 

954. 
Kendall  v.  Marshall  (11  Q.  B.  D.  356), 

1561.  1575. 
Kendall  v.  May  (10  Allen,  62),  84. 
Kendall  v.  Sampson  (12  Vt.  515),  963. 
Kendrick  v.  Lomax  (2  Cr.  &  J.  405), 

1428. 
Kennebrew  v.  Southern  Automatic, 

etc.  Co.  (106  Ala.  377),  1314. 

Kennedy  v.  Conroy  ( Cal.  — ),  964. 

Kennedy  v.  Lee  (3  Meriv.  441),  228. 
Kennedy  v.  Panama,  etc.   Mail  Co. 

(L.  R.  2  Q.  B.  580),  275. 
Kennedy  v.  Whittie  (27  Nova  Scotia, 

460),  492. 
Kennedy  v.  Whitwell  (4  Pick.  466), 

1786. 
Kenner  v.  Harding  (85  111.  264),  868, 

935,  1272. 
Kenney  v.  Altvater  (77  Pa.  St.  34), 

145.- 
Kenney  v.  Heirs  (26  Neb.  213),  428. 
Kenney  v.  Ingalls(126  Mass.  488),  546. 
Kenniston  v.  Ham  (29  N.  H.  501),  213, 

674. 
Kent  v.  Bornstein  (12  Allen,  342),  916, 

1463. 
Kent  v.  Bowker  (38  Vt.  148),  1441. 


TABLE    OF   CASES    CITED. 


CXXX1 


References  are  to  sections:  Vol. 

Kent  v.  Buck  (42  Vt.  18),  592. 

Kent  y.  Friedman  (101  N.  Y.  61G), 

139& 
Kent  v.  Miltenberger  (13  Mo.  App. 

503),  1032. 
Kent  v.  Ricards  (3  Md.  Ch.  392),  1455. 
Kent  Iron  Co.  v.  Norbeck  (150  Pa.  St. 

559),  760. 
Kenton  v.  Ratcliff  ( —  Ky.  — ),  963. 
Kentucky  Club  v.  Louisville  (92  Ky. 

809),  55. 
Kentucky  Refining  Co.  v.  Globe  Re- 
fining Co.  ( —  Ky.  — ),  779. 
Kenwortby  v.  Schofield  (2  B.  &  C. 

945),  426. 
Kerkhof  v.  Atlas  Paper  Co.  (68  Wis. 

<;;  h,  ni). 
Kern  v.  Thurber  (57  Ga.  172),  923. 
Kerr  v.  Bell  (44  Mo.  120),  109. 
Kerr  v.  Hayes  (35  N.  Y.  331),  1502. 
Kerr  v.  Henderson  (62  N.  J.  L.  734), 

50a 

Kerr  v.  Smith  (5  B.  Mon.  552).  1092. 
Kerwin  v.  Doran  (29  Mo.  App.  397), 

1013. 
Kr>sler  v.  Smith  (42  Minn.  491),  738, 

1181. 
Kester  v.  Miller  (119  N.  C.  475),  1844. 
Ketchum  v.  Brennan  (53  Miss.  596), 

599,  629. 
Ketchum  v.  Catlin  (21  Yt.  191),  277. 
Ketchum  v.  Wells  (19  Wis.  26),  1079, 

1340, 1345. 
Ketchum  v.  Zeilsdorff  (26  Wis.  514), 

1106. 
Key  v.   Cotesworth   (7    Exch.    595), 

775. 
Keyser  v.  District  No.  8  (35  X.  H.  477), 

333. 
Keystone  Watch  Case  Co.  v.  Fourth 

Street  National  Bank  (194  Pa.  St. 

535),  48. 
Kibble  v.  Gough  (38  L.  T.  204\  369. 
Kiddell  v.  Burnard  (9  M.  &  W.  668), 

1270. 
Kidder  v.  Blake  (45  N.  H.  530),  1004. 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Kidney  v.  Consomaher  (12  Ves.  156), 

974 
Kilgore  v.  Bruce  (166  Mass.  136),  937, 

1843. 
Kilgore  v.  Rich  (83  Me.  305),  132. 
Killmore  v.  Howlett  (48  N.  Y.  569), 

305. 
Kimball  v.  Bruce  (58  N.  H.  327),  109. 
Kimball  v.  Cunningham  (4 Mass.  502), 

910,  914 
Kimball  v.  Farnum  (61  N.  H.  348), 

628. 
Kimball  v.  Jackman  (42  N.  H.  242), 

599. 
Kimball  v.  Post  (44  Wis.  471),  603. 
Kimball  v.  Rowland    (6    Gray,  224), 

1080. 
Kimball  Co.  v.  Mellon  (80  Wis.  133), 

564  583,  592,  603. 
Kimberley  v.  Patchin  (19  N.  Y.  360), 

51U,  702,  708, 711, 714, 759, 1158. 1505. 
King  v.  Bates  (57  N.  H.  446),  599. 
King  v.  Batterson  (13  R.  I.  117),  267. 
King  v.  Brown  (24  111.  App.  579),  902. 
Kin-  v.  Faist    (181    Mass.   449),   806, 

1087. 
King  v.  Finch  (60  Ind.  420),  1417. 
King  v.  Green  (6  Allen,  139),  1053. 
King  v.  Jarman  (35  Ark.  190),  387, 

527.  538 
King  v.  Rochester  (67  N.  H.  310).  1154. 
King  v.  Towsley  (64  Iowa,  75),  1384. 
King  v.  Wilcox  (11   Paige,  594),  974. 
King  v.  Wood  (7  Mo.  389),  429. 
King  Philip  Mills  v.  Slater  (12  R.  I. 

82),  1145,  1148. 
Kinghorne  v.  Telegraph  Co.  (18  U.  C. 

Q.  B.  60),  224. 
Kingman  v.  Denison  (84  Mich.  608), 

1542,  1564,  1596. 
Kingman  v.  Hotaling  (25  Wend.  423), 

1411. 
Kingman  v.  Perkins  (105  Mass.  Ill), 

95,  97. 
Kingman  v.  Watson    (97   Wis.   596), 

1387,  1396. 


cxxxn 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Kingman  &  Co.  v.  Hanna  Wagon 

Co.  (176  111.  547),  1180,  1702. 
Kingman  &  Co.  v.  Western  Mfg.  Co. 

(34  C.  C.  A.  489),  1701. 
Kingsbury  v.  Smith   (13  N.  H.  109), 

148. 
Kingsbury    v.   Taylor   (29  Me.   508;, 

1311. 
Kingsford  v.  Merry  (11  Ex.  577),  148, 

923,  924. 
Kingsford  v.  Merry  (1  H.  &  N.  503), 

269. 
Kingsley  v.  Holbrook  (45  N.  H.  313), 

336. 
Kingsley  v.  Johnson  (49  Conn.  462), 

1244. 
Kingsley  v.  White  (  57  Vt.  565),  964, 

1197. 
Kinley  v.  Fitzpatrick  (4  How.   59), 

862,  1229. 
Kinloch  v.  Craig  (3  T.  R.  119).  1534. 
Kinney  v.  Cay  (39  Minn.  210),  603. 
Kinney  v.  Kiernan  (49  N.  Y.  164),  909. 
Kinney  v.  McDermot  (55  Iowa,  674), 

1053. 
Kinsman  v.  Kershaw  (119  Mass.  140), 

1450. 
Kipp  v.  Bingham  (6  Johns.  157),  1798. 
Kipp  v.  Meyer  (5  Hun,  111),  1390. 
Kirby  v.  Johnson  (22  Mo.  354),  382, 

386. 
Kirby  v.  Milling  Co.  (105  Ala.  529), 

1050. 
Kirby  v.  Tompkins  (48  Ala.  273),  633. 
Kircher  v.  Conrad  (9  Mont.  191),  832, 

1242,  1244. 
Kirk  v.  Hiatt  (2  Ind.  322),  1455. 
Kirkland  v.  Carr  (35  Miss.  584),  1131. 
Kirk patrick  v.   Adams  (20  Fed.'  R. 

825),  1031. 
Kirkpatrick  v.  Alexander  (60  Ind.  95), 

1136. 
Kirkpatrick  v.  Bonsall  (72  Pa.  St.  155), 

1034. 
Kirkpatrick    v.   Puryear   (93  Tenn. 

409),  1433. 


Kirkwood  v.  Hoxie  (95  Mich.  62),  619. 
Kirtland  v.  Snow  (20  Conn.  23),  982. 
Kissam  v.  Edmundson  (1  Ired.  Eq. 

180),  975. 
Kitchen  v.  Lee  (11  Paige,  107),  109, 

121. 
Kitchen  v.  Spear  (30  Vt.  545),  1571, 

1578. 
Kitchen  v.  Stokes  (9  W.  N.  Cas.  48), 

1082. 
Kitzinger  v.   Sanborn  (70  111.   146), 

1103. 
Kleckley  v.  Leyden  (63  Ga.  215),  1050. 
Klee  v.   Reitzenberger  (23  W.   Va. 

749),  964. 
Kleeb  v.  Bard  (7  Wash.  41),  1337. 
Kleeman  v.   Collins    (9   Bush,   460), 

432. 
Kleeman  v.  Peltzer  (17  Neb.  381),  948. 
Klein  v.  Livingstone  Club  (177  Pa. 

St.  224),  55. 
Klein  v.  Seibold  (89  111.  540),  154. 
Kline  v.  Baker  (99  Mass.  253),  757. 
Kline  v.  Baker  (106  Mass.  57),  901. 
Kline  v.  Kline  (57  Pa.  St.  120),  872. 
Kline  v.  LAmoureux  (2  Paige,  419), 

127,  128. 
Kling  v.  Fries  (33  Mich.  275),  1028. 
Knapp  v.  Wolverton  (47  Mich.  292), 

342. 
Knapp    Electrical    Works    v.    New 

York  Insulated  Wire  Co.  (157  111. 

456),  741. 
Kneass  v.  Schuylkill  Bank  (4  Wash. 

C.  C.  12),  834. 
Kneeland  v.   Renner  (2  Kan.  App. 

451),  485,  492,  502. 
Knight  v.  Burnham  (90  Me.  294),  1050. 
Knight  v.  Crockford  (1  Esp.  190),  451, 

456. 
Knight  v.  Mann  (118  Mass.  143),  359, 

362,  367,  369. 
Knights  v.  Wiffin  (L  R.  5  Q.  B.  660), 

170,  1503,  1505. 
Knittel  v.  Cushing  (57  Tex.  354),  570, 

583. 


TABLE   OF    CASES    CITED. 


CXXX111 


References  are  to  sections:  Vol 
Knoblauch  v.  Kronschnabel(18Minn. 

300),  1375. 
Knowlton  v.  Rede'nbaugh  (40  Iowa, 

114),  599. 
Knower  v.  Cadden  Clothing  Co.  (57 

Conn.  209),  95a 
Knowles  Loom  Works  v.  Vacher  (57 

N.  J.  L.  490),  599,  603. 
Knowlton  v.  Doherty  (87  Mo.  518), 

1027. 
Knowlton  v.  Keenan  (146  Mass.  86), 

870. 
Knowlton  v.  Newell  (10  Allen,  34), 

1131. 
Knowlton  v.  Spring  Co.  (57  X.  V.  518), 

999. 
Knox  v.  Clifford  (38  Wis.  651).  1054 
Knox  v.  Eden  Musee  Co.  (148  N.  V. 

Hi).  163. 
Knox  v.  King  (36  Ala.  367),  184. 
Knuokolls  v.  Lea  (10  Hump.  577  ,909. 
Kocb  v.  Lyon  (82  Mich.  513),  928. 
Kohlv.  Lindley(39  111.  L95),  196,  198, 

586,  1237,  1811,  1852. 
Kohl  v.  Lynn  (34  Mich.  360),  924. 
Kohlei   n.    Hayes  (41   Cal.   455 

585,  599. 
Kohn   v.   Milcher  (43  Fed.  R.  641), 

1027. 
Kohn  v.   Washer  (64  Tex.  181),  179. 

1117. 
Kokomo  Strawboard  Co.   v.   Tnnian 

(134  N.  Y.  92).  1117.  1148,  1664, 
Koones  v.  District   of  Columbia  (4 

Mackey,  339),  1433. 
Kornegay   v.   Kornegay  (109  N.   C. 

188),  599,  603,604. 
Kornegay  v.  White(10  Ala.  255),  1270. 
Kornemann  v.  Monaghan  (24  Mich. 

36),  1445.  1117.  MIS. 
Kost  v.  Reilly  (62  Conn.  57),  651. 
Kountz  v.   Dickson    I  10    -Miss.    341), 

1057. 
Kountz  v.  Kirkpatriok   (72  Pa.  St. 
378),  208. 

.1 


I,  §§  1-797;  Vol.  n,  §§  798-1850. 

Kountz  v.  Price  (40  Miss.  341),  1055, 

1057. 
Kountze  v.  Kennedy  (147  N.  Y.  124), 

875. 
Kramer  v.  Messner  (101  Iowa,  88),  823, 

1055. 
Kraus  v.  Thompson  (30  Minn.  64),  908. 
Krebs  v.  O'Grady  (2:1  Ala.  726),  178. 
Kreiss  v.  Seligman  (8  Barb.  439),  1013. 
Kribs  v.  Jones  |  1 1  Md  396),  1103, 1129, 

1736,  1748. 
Kriete  v.  Myer  (61  Md.  558).  440. 
Krnavek  v.  State  (38  Tex.  Crim.  R. 

44),  55. 
Krohn  v.  Bantz(68  End.  277),  406, 413. 
Krohn  v.  Williamson  (62  Fed.  R.  869), 

1727. 
Kroni   v.    Levy  (3  N.  Y.  Supp.  704), 

lllil. 
Krouse  v.  Woodward  (110  Cal.  338), 

IT  is.  1727. 
Krouskop  v.  Sbontz  (51  Wis.  204),  138. 
Kruhla-  v.  Ellison  (47  N.  Y.  36),  736, 

1181. 
Krumbhaar  v.  Birch  (83  Pa.  St.  426), 

1303,  1795. 
Krumm  v.  Beach  (96  N.  Y.  398).  1843. 
Kuehn  v.  Wilson  (13  Wis.  104),  1223. 
Kugler  v.  Wiseman  (20  Ohio,  361), 

1106. 
Kuhnsv.  Gates  (92  Ind.  66),  1057. 
Kunkle  v.  Mitchell  (56  Pa.  St.  100), 

1081,1130. 
Kuppenheimer  v.  Wertheimer  (107 

Mich.  77).  731. 
Kurtz  v.  Frank  (76  Ind.  594),  1090. 
Kuykendall  v.  McDonald  (15  Mo.  416), 

951,  954. 
Kyle  v.  Kavanaugh  (103  Mass.  356), 

228  272. 
Kyle'  v.  Ward  (81   Ala.  120),  903,  904. 
Lackey  v.  Stouder  (2  Ind.  376),  1302. 
Lackington  v.  Mherton  (7  M.  &  G. 

360),  no:*. 
Ladd  v.  Dillingham  (34  Me.  316),  1004. 


CXXX1V 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  ATol.  II,  §§  708-1850. 


Ladd  v.  Moore  (3  Sandf.  589),  915,  919. 
Ladd  v.  Wiggin  (35  N.  H.  421),  956. 
Lady  Arundell  v.  Phipps  (10  Ves.  139), 

1719. 
Laidlaw  v.  Organ  (2  Wheat,  178),  868. 
Laidler  v.  Burlinson  (2  M.  &  W.  602), 

755. 
Laird  v.  Pirn  (7  M.  &  W.  474),  1106. 
Lake  v.  Morris  (30  Conn.  201),  964. 
Lake  Shore  R.  Co.  v.  Hutchins  (32 

Ohio  St.  571),  6:39. 
Lake  Shore,  etc.  Ry.  Co.  v.  Nat,  Live 

Stock  Bank  (178  111.  506),  1538. 
Lake  Shore,  etc.  R.  Co.  v.  Richards 

(152  111.  59),  1089,  1090. 
Lakeside  Press  Co.  v.  Campbell  (39 

Fla,  523),  1447,  1448. 
Lamar  Water  Co.  v.  City  of  Lamar 

(140  Mo.  145),  1387. 
Lamb  v.  Crafts  (12  Mete.  353),  307, 

324,  1254,  1337. 
Lamb  v.  Durant  (12  Mass.  54),  981, 

1201. 
Lamb  v.  Lamb  (130  Ind.  273),  873. 
Lamb  v.  Hirschberg  (1  N.  Y.  App. 

Div.  519),  1450. 
Lambert  v.  McCloud  (63  Cal.  162),  613. 
Lamman  v.  McGregor  (94  Ind.  301), 

1660. 
Lamme  v.  Gregg  ( 1  Mete.  444),  1235, 

1242. 
La  Mont  v.  La  Fevre  (96  Mich.  175), 

1407. 
L' Amoureaux  v.  Crosby  (2  Paige,  422), 

69,  70. 
Lamprey  v.  Sargent  (58  N.  H.  241), 

702,  703. 
Lamson  v.  Patch  (5  Allen,  586).  964. 
Lancaster  v.  Knickerbocker  Ice  Co. 

(153  Pa.  St.  427),  1450. 
Lancaster  County  Bank  v.  Moore  (78 

Pa.  St.  407),  74,  75. 
Landa  v.  Latten  (19  Tex.  Civ.  App. 

246),  1816. 
Landigan  v.  Mayer  (32  Oreg.  245),  593, 

646. 


Landman  v.  Bloomer  (117  Ala.  312), 

1240,  1254. 
Lane  v.  Bishop  (65  Vt.  575),  138. 
Lane  v.  Chad  wick  (146  Mass.  68),  740. 
Lane  v.  Dudley  (2  Murph.  119),  1294. 
Lane  v.  Jackson  (5  Mass.  157),  1292. 
Lane  v.  Neale  (2  Stark.  105),  41. 
Lanfear  v.  Sumner  (17  Mass.  110),  981, 

984,  989,  990. 
Lang  v.  Lynch  (38  Fed.  R.  489),  1028. 
Lang's  Appeal  (81  Pa.  St.  18),  755. 
Lang's  Heirs  v.  Waring  (25  Ala.  025), 

1307. 
Langdon  v.  Clayson  (75  Mich.  204), 

100. 
Langdon  v.  De  Groot  (1  Paine,  203), 

834 
Langdon  v.  Potter  (13  Mass.  319),  1455. 
Langfort  v.  Tiler  (1  Salk.  113),  404. 
Langridge  v.  Levy  (2  M.  &  W.  519), 

878. 
Langstaff  v.  Stix  (64  Miss.  171),  1582. 
Langton  v.  Higgins  (4  H.  &  N.  402), 

727,  735. 
Langton  v.  Hughes  (1  M.  &  S.  593), 

1012,  1015. 
Langworthy  v.  Little  (12  Cush.  109), 

649. 
Lanier  v.  Auld  (1  Murph.  138),  1311. 
Lankton  v.  Stewart  (27  Minn.  346), 

1419. 
Lansden  v.  McCarthy  (45  Mo.  106), 

267. 
Lansing  v.  Turner  (2  Johns.  13),  483. 
Lansing  Iron  &   Engine   Works  v. 

Walker  (91  Mich.  409),  599,  645. 
Lansing  Iron  Works  v.  Wilbur  (11 

Mich.  413),  599. 
Laporte  Imp.  Co.  v.  Brock  (99  Iowa, 

485),  1395. 
Laraway  v.  Perkins  (10  N.  Y.  371), 

1709. 
Larkin  v.  Mitchell  Lumber  Co.  (42 

Mich.  196),  746,  1160. 
Larmon  v.  Jordan  (56  111.  204),  244, 


TABLE    OF    CASES    CITED. 


CXXXV 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Larned  v.   Andrews  (106  Mass.  435), 

1046,  1051. 
Larson  v.  Aultman  (86  Wis.  281),  1395, 

1811. 
Larson  v.  Breene  (12  Colo.  480),  1434. 
La  Rue  v.  Gilkyson  (4  Pa.  St.  375),  8  1 
Lassing  v.  James  (107  Cal.  348),  519, 

1618,  1674,  1677,  1810. 
Latham  v.  Bausmann  (39  Minn.  57), 

1384. 
Latham  v.  Davis  (44  Fed.R.  862),  629. 
Latham   v.    Shipley   (86   Iowa.    543), 

1235,  1240,  1242. 
Latham  v.  Sumner  (89  I1L  233),  622, 

629. 
Lathrop  v.  Clayton  (-15  Minn.  124),  904. 
Lathrop  v.  Page  (129  Mass.  19),  1419. 
La  ii  bach  v.  Laubach  (73  Pa.  St.  387), 

685. 
Laughton  v.  1  [arden  (68  Me.  208),  973. 
Law  v.  Hodgson  (2  Camp.  117).  1045. 
Law  v.  Hodson  (11  East,  300),  1050. 
Law  v.  Long  (41  Ind.  586),  79. 
Law  v.  Stokes  (3  Vroom,  249).  1447, 

144*.  1450. 
Lawes  v.  Purser  (6  El.  &  BI.  930), 

834. 
Lawrence  v.  Gayetty  (78  Cal.  126), 

870. 
Lawrence  v.  Gifford  (17  Pick.  366), 

1072. 
Lawrence  v.  Porter  (22  U.  S.  A  pp. 

483),  1740,  1754.  1755. 
Lawrence  Canning  Co.  v.  Lee  Mer- 
cantile Co.  (5  Kan.  App.  77),  1690. 
Lawry  v.  Ellis  (85  Me.  500),  714. 
Lawson  v.  De  Bolt  (78  Ind.  564),  9. 
Lawson  v.  Lovejoy  (8  Greenl.  405), 

121. 
Lawton  v.  Blitch  (83  Ga.  663),  1031. 
Lawton  v.  Gordon  (34  Cal.  36),  947. 
Lawton  v.  K-ittridge  (30  N.  H.  500), 

936. 
Liytlioarp  v.  Bryant  (2  Bing.  N.  C. 

735),  449. 
Lazarus  v.  Bank  (72  Tex.  354),  564. 


League  v.  Waring  (85  Pa.  St,  244), 

1426,  1435. 
Leask  v.  Scott  (2  Q.  B.  Div.  376),  1563, 

1565. 
Leath  v.  Uttley  (66  Tex.  82),  599. 
Leather    Cloth    Co.    v.   Hieronimus 

(L.  R.  10  Q.  B.  140),  428,  806. 
Leatherbury  v.  Connor  (54  N.  J.  L. 

172),  555. 
Leavitt  v.  Dover  (67  N.  H.  94),  1103. 
Leavitt  v.  Fairbanks  (92  Me.  521),  170. 
Leavitt  v.  Fletcher  (60  N.  H.   182), 

880,  1272. 
Leavitt  v.  Morrow  (6  Ohio  St.   71), 

1467. 
Ledwich  v.  McKim  (53  N.    Y.  307), 

838,  1793,  1849. 
Ledyard  v.  Hibbard  (48  Mich.  421), 

25,  28. 
Lee  v.  Bangs  (43  Minn.  23),  1374, 1382, 

1392. 
Lee  v.  Cherry  (85  Tenn.  707),  428,  432, 

435. 
Lee  v.  Figg  (37  Cal.  328),  958. 
Lee  v.  First  Nat.  Bank  (45  Kan.  8), 

113. 
Lee  v.  Gaskell  (1  Q.  B.  Div.  700),  329, 

333. 
Lee  v.  Griffin  (1  Best  &  Smith,  272), 

302,  305,  307,  309,  313,314. 
Lee  v.  Kimball  (45  Me.  172).  924,  1565 
Lee  v.  Lee  (4  McCord,  183),  67. 
Lee  v.  Mahony  (9  Iowa,  344),  426. 
Lee  v.  Munroe  (11  U.  S.  366),  191. 
Lee  v.  Openheimer  (32  Me.  253),  1419. 
Lee  v.  Sickles  Saddlery  Co.  (38  Mo. 

App.  201),  1344. 
Lee  v.  Simmons  (65  Wis.  523).  901,  914. 
Lee  Bros.  Furn.  Co.  v.  Cram  (63  Conn. 

433),  603. 
Lee  Silver  Mining  Co.  v.  Omaha,  etc. 

Smelting  Co.  (16  Colo.  118),  264. 
Leeds  v.  Wright  (3  Bos.  &  Pul.  320), 

1577. 
Leeming  v.  Snaith  (16  Q.  B.  275),  1168. 
Lees  v.  Whitcomb  (5  Bing.  31),  226. 


CX  XX  VI 


TABLE    OF   CASES    CITED. 


References  afe  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Leffingwell  v.  Whhe  (1  Johns.  Cas. 

99),  1135. 
Legg,  In  re  (96  Fed.  R.  326),  650. 
Legg  v.  Willard  (17  Pick.  140),  964 
Leggatt  v.  Brewing  Co.  (60  111.  158), 

1265,  1298. 
Leggett  v.  Young  (29  New  Bruns.  675), 

1331,  1358. 
Leggett  &  Meyer  Co.  v.  Collier  (89 

Iowa,  144),  365,  736,  738,739,  1387. 
Le  Grand  v.  National  Bank  (81  Ala. 

123),  903,  904,  923. 
Lehenbenter  &  C.  Co.  v.  McCord  (65 

Mo.  App.  507),  440. 
Lehigh  Co.  v.  Field  (8  W.  &  S.  232),  32. 
Lehigh  Zinc  &  Iron  Co.  v.  Bamford 

(150  U.  S.  665),  871,  875. 
Lehmberg  v.  Biberstein  (51  Tex.  457), 

976. 
Lehman  v.  Shackleford  (50  Ala.  437), 

872. 
Lehman  v.   Strassberger  (2  Woods, 

554),  1032,  1039. 
Lehman  v.  Warren  (53  Ala.  535),  543. 
Leigh  v.   Mobile  &  Ohio  R.  Co.  (58 

Ala.  178),  156,  601. 
Leigh  v.    Patterson   (8  Taunt.   540), 

1088. 
Leitch  v.   Gillette-Herzog  Mfg.   Co. 

(64  Minn.  434),  1324. 
Lemayne  v.  Stanley  (3  Lev.  1),  451. 
Lemen  v.  Robinson  (59  111.  115),  960. 
Lemmon  v.  Beeman  (45  Ohio  St.  505), 

118. 
Lemonius   v.   Mayer  (71   Miss.   514), 

1043. 
Lempriere  v.  Pasley  (2  T.  R.  485),  380. 
Lentz  v.  Flint  &  P.  M.  Ry.  Co.   (53 

Mich.  444),  1594. 
Lenz  v.  Harrison  (148  111.  598),  49. 
Leon  v.  Goldsmith  (69  111.  App.  22), 

920. 
Leonard  v.  Beaudry  (68  Mich.  312), 

1709. 
Leonard  v.  Davis  (1  Black,  476),  485, 
493,  502,  518,  1197,  1481. 


Leonard  v.   Fowler  (44  N.  Y.  289), 

1320,  1328. 
Leonard  v.  Leonard  (14  Pick.  283),  69, 

72. 
Leonard  v.  Medford  (85  Md.  666),  337. 
Leonard  v.  Portier  (15  S.  W.  R.  414), 

1633,  1634. 
Leonard  v.  Stott  (108  Mass.  46),  132. 
Leonard  v.  Winslow  (2  Grant's  Cas. 

139),  41. 
Leopold  v.  Van  Kirk  (27  Wis.    152), 

1265,  1298,  1317.  1346. 
Le  Page  v.  McCrea  (1   Wend.   164), 

1420. 
Lerned  v.    Wanuemacher  (9   Allen, 

412),  426. 
Lesassier  v.    The    Southwestern    (2 

Woods,  35),  1565. 
Lester  v.  Buel  (49  Ohio  St.  240),  1031. 
Lester  v.  East  (49  Ind.  588),  508,  714. 
Lester  v.  Heidt  (86  Ga.  226),  439. 
Lester  v.  Palmer  (4  Allen,   145),  884. 
Levan  v.  Witten  (135  Pa.  St.  61),  585, 

624. 
Leven  v.  Smith  (1  Denio,  571),   542, 

543,  551,  1437. 
Levi  v.  Booth  (58  Md.  300),  154,  158, 

160. 
Levi  v.  Bray  (12  Ind.  App.  9),  905. 
Levin  v.  Russell  (42  N.  Y.  251),  963. 
Levy  v.  Cohen  (4  Ga.  1),  247. 
Levy  v.  Green  (8  El.  &  Bl.  575),  1158. 
Levy  v.  Green  (1  E.  &  E.  969),  746, 

1158. 
Levy  v.  Scott  (115  Cal.  39),  964. 
Lewarkv.  Carter  (117  Ind.  206),  856. 
Lewenbergv.  Hayes  (91  Me.  104),  549. 
Lewis  v.  Baircl  (3  McLean,  56),  67. 
Lewis  v.  Brass  (3  Q.  B.  D.  667),  235. 
Lewis  v.  Browning    (130  Mass.   173), 

247,  250. 
Lewis  v.  Evans  (108  Iowa,  296),  325. 
Lewis  v.  Galena,   etc.  R.  R.   Co.  (40 

111.  281),  752. 
Lewis  v.  Greider  (51  N.  Y.  231),  1638, 
1643. 


TABLE    OF    OASES    CITED. 


cxxxvu 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Lewis  v.  Hofer  (16  N.  Y.  Supp.  531), 

1134 
Lewis  v.  Hubbard  (1  Lea,  436),  1812. 
Lewis  v.  Jewell  (151   Mass  345\  938. 
Lewis  v.  Latham  (74  N.  C.  283),  1013, 

1024. 
Lewis  v.  Mason  (36  Up.  Can.   Q.  B. 

590).  1586,  1587,  1004. 
Lewis  v.  Metoalf  (53  Kan.  217).  1450. 
Lewis  v.  McCabe  (49  Conn.  141),  597, 

599. 
Lewis  v.  Roundtree   (78   N.    C.    323), 

1235,    1334    1345,    1393,    1395,  1817, 

1833. 
Lewis  v.  Steiner  (84  Tex.  364),  1483. 
Lewis  v.  Thatcher  (15  Mass.  Utl),  1264. 
Lewis  v.  Wood  (153  Mass.  321),  434 
Li  obey  v.  Downey  (5  Allen,  299;,  1046, 

1050. 
Libuy  v.  Haley  (91  Me.  331),  1805. 
Libby  v.  Ingalls  (124  Mass.  503).  771. 
Lick  barrow  v.  Mason   (5  T.  R.  683), 

1501. 
Lickbarrow  v.  Mason  (1  H.  Bl.  357). 

1526. 
Lickbarrow  v.  Mason  (1  Smith's  L.  C. 

388),  269. 
Lickbarrow  v.  Mason    (2    T.   R.   63), 

1563. 
Lickbarrow  v.  Mason   (4   Bro.   P.   C. 

57),  1526 
Liddard  v.  Kain  (9  Moore.  356),  1273. 
Liddell  v.  Sahline  (55  Ark.  627),  187. 
Lieberrnan  v.  Puckett  (94  Tenn.  273), 

629. 
Liebes  v.  Steffy  (—  Ariz.  — ),  960. 
Light  burn  v.  Cooper  (1  Dana,  273), 

1805. 
Lighthouse  v.  Third  Nat.  Bank  (162 

N.  Y.  336),  1733. 
Lile  v.  Hopkins  (12  Smed.  &  M.  299), 

1302. 
Lilienthal  v.  Ballou  (125  Cal.  183), 

951. 
Lilienthal   v.   Suffolk   Brewing  Co. 

(154  Mass.  185),  211,  812,  939. 


Lillie  v.  Dunbar  (62  Wis.  198),  336, 

603. 
Lillywhite  v.  Devereux  (15  M.  &  W. 

285),  373,  389. 
Lima  Mach.  Works   v.  Parsons  (10 

Utah,  105),  564. 
Lindauer  v.  Hay  (61  Iowa,  663).  S95, 

896,  901. 
Lincoln  v.  Buckmaster  (32  Vt.  652\ 

74,  77. 
Lincoln  v.  Erie  Preserving  Co.  (132 

Mass.  129),  225,  429,  434 
Lincoln  v.  Gallagher  (79  Me.  189), 

1125,  1189. 
Lincoln  v.  Quynn  (68  Md.  299),  600. 
Lincoln  Shoe  Mfg.  Co.  v.  Sheldon  (44 

Neb.  279),  1690,  1694,  1695. 
Lindley  v.  Lacy  (17  C.  B.  578),  1255. 
Lindon  v.  Sharp  (6  M.  &  G.  895),  960. 
Lindsay  v.  Cundy  (3  App.  Cas.  459), 

887. 
Lindsey  v.  Rutherford  (17   B.   Mon. 

245),  1051. 
Lindsey  v.  Stone  (123  Mass.  332),  1018. 
Lin  forth,  In  re  (Fed.  Cas.  No.  8,369), 

49. 
Liu  forth,  In  re  (4  Sawy.  370),  49. 
Lingham  v.  Eggleston  (27  Mich.  324), 

489,  499,  502,  516. 
Lining  v.  Geddes  (1  McCord,  Eq.  304), 

1718. 
Linington  v.  Strong  (107  111.  295),  881. 
Linn  v.  Gunn  (56  Mich.  447),  1241. 
Linn  v.  Wright  (18  Tex.  317),  960. 
Linn-Boyd  Tobacco  Co.  v.  Terrill  (13 

Bush,  463),  461. 
Linsley  v.  Tibbals  (40  Conn.  522),  428. 
Linton  v.  Butz  (7  Pa.  St.  89),  960, 964, 

988,  1490. 
Linton  v.  Porter  (31  111.  107),  1795. 
Lippincott  v.  Rich  (19  Utah,  140),  599, 

608,  633. 
Litchfield  v.  Hutchinson  (117  Mass. 

195),  875. 
Lift  v.  Cowley  (7  Taunt.  169),  1606, 

1611. 


CXXXV1U 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-707:  Tol.  II,  §§  798-1850. 


Little  v.  American,  etc.  Mach.  Co.  (67 

Ind.  67),  1439. 
Little  v.  Dougherty  (11    Colo.  103), 

429. 
Little  v.  Little  (13  Gray,  264),  69. 
Little  v.  Mercer  (9  Mo.  216),  1106. 
Little  v.  Page  (41  Mo.  412),  599. 
Little  v.  Poole  (9  B.  &  Cr.  192),  1030. 
Little  v.  Van  Syckle  (115  Mich.  480), 

1260,  1353. 
Littlefield  v.   Perry   (21    Wall.  221), 

1729. 
Littlejohn  v.  Shaw  (159  N.  Y.  188), 

1077. 
Little  Pittsburgh  Mining  Co.  v.  Min- 
ing Co.  (11  Colo:  223),  642. 
Little  Rock  &  Fort  Smith  Ry.  Co.  v. 

Page  (35  Ark.  304).  963. 
Little  Rock  &  Ft.  S.  R.  Co.  v.  Wig- 
gins (65  Ark.  383),  1459. 
Littleton  v.  Loan,  etc.  Ass'n  (97  Ga. 

172),  187. 
Liverraore  v.  'White  (74  Ma  453),  269. 
Livesay  v.  Beard  (22  W.  Va.   585), 

978. 
Livingston  v.  Wagner  (23  Nev.  53), 

207.  1659. 
Lloyd  v.  Brewster  (4  Paige,  537),  908. 
Lloyd  v.  Fulton  (91  U.  S.  479),  959. 
Lloyd  v.  Loaring  (6  Ves.  773),  1719. 
Lloyd  v.  Williams  (6  Colo.  App.  157), 

964. 
Lobdell  v.  Hopkins  (5  Cow.  516),  734, 

1124.1125. 
Lobdell  v.  Stowell  (51  N.  Y.  70),  711. 
Lobenstein  v.  United  States  (91  U.  S. 

324).  1169. 
Lobstein  v.  Lehn  (120  111.  549),  952, 

978. 
Locke  v.  Smith  (41  N.  H.  346),  109, 

123. 
Locke  v.   Williamson  (40  Wis.  377'. 

1380,  1392,  1395. 
Lockhart  v.  Bonsall  (77  Pa.  St,  53), 

1127,  1130,  1158. 
Lockhart  v.  Wyatt  (10  Ala  231),  145S. 


Loder  v.  Kekule  (3  Com.  B.,  N.  S.,  128), 
1817. 

Loeb  v.  Peters  (63  Ala.  243),  1539, 1563, 

1564,  1565,  1579. 
Logan  v.  Gardner  (136  Pa.  St.  588).  95. 
Logan  v.  Le  Mesurier  (6  Moore,  P.  C. 

116),  479,  515. 
Logwood  v.  Hussey  (60  Ala.  417),  692. 
Lomi  v.  Tucker  (4  Car.  &  P.  15),  1242. 
London  Joint  Stock   Bank  v.  Sim- 
mons (App.  Cas.  201),  156,  162. 
London,  etc.  Bank,  In  re  (34  Law  J. 

Ch.  418),  143a 
London  &  Northwestern  Ry.  Co.  v. 
Bartlett  (7  H.  &  N.  400),  787.  1550. 
Lonergan  v.  Stewart  (55  111.  49),  21,  23. 
Long  v.  Conklin  (75  111.  32),  1745, 1746. 
Long  v.  Hickingbottom  (28  Miss.  772), 

1302. 
Long  v.  Hicks  (2  Humph.  305),  1272. 
Long  v.  Long  (9  Md.  348),  74. 
Long  v.  Millar  (4  C.  P.  Div.  450),  426. 
Long  v.  Spruill  (58  N.  C.  96),  702. 
Long  v.  Warren  (68  N.  Y.  426),  879, 

880. 
Long  v.  White  (42  Ohio  St.  59),  334. 
Long  v.  Williams  (74  Ind.  115),  108. 
Long  v.  Woodman  (58  Me.  49),  874, 

937. 
Longworth  v.  Mitchell  (26  Ohio  St. 

334),  244. 
Loomis  v.  Bragg  (50  Conn.  228),  569, 

614,  620.  635. 
Loomis  v.  Wainwright  (21  Vt.  520),  14 
Loper  v.  Robinson  (54  Tex.  510),  875. 
Lord  v.  Buchanan  (69  Vt.  320),  589, 

592. 
Lord  v.  Edwards  (148  Mass.  476),  492, 

739,  1265. 
Lord  v.  Grow  (39   Pa.    St.  88),    1242, 

1311. 
Loring  v.  Boston  (7  Mete.  409),  245. 
Lorymer  v.  Smith  (1  B.  &  Cr.  1),  1208. 
Loucheim  v.  Sey forth  (49  111.  App. 

561),  964. 
Loud  v.  Campbell  (26  Mich.  239),  1831. 


TABLE   OF    CASES    CITED. 
References  are  to  sections:  Vol.  I,  §5  1-797:  Vol.  n,  §§  79&-1850. 


CXXX1X 


Loughridge  v.  Bowland  (52  Miss.  546), 

971. 
Louisiana,  etc.  Co.  v.  Bass.  etc.  Works 

(30  U.  S.  App.  433  ,  1384 
Louisville   Asphalt  Varnish    Co.   v. 

Lorick(29S.CL533),426,428. 
Louisville  R.  Co.  v.  Alexander  (27  S. 

W.  R  981),  1-  9 
Louisville  Ry.  Co.  v.  Herr  (135  Ind. 

591),  72. 

Louisville,  etc.  R  R  Co.  v.  Holler- 
bach  (105  Ind.  137).  1775. 

Louisville,  etc.  Ry.  Co.  v.  Iron  Co. 
!     111.  294),  1130. 

Lovatt  v.  Hamilton  (5  M.  &  W.  639), 

Love  v.  Harvev  .114  Mass.  BO  .  1031. 
Love  v.  Miller  .1"  l  N.  C. 
Love  v.  Boss  (89  Iowa, 

Lovejoy  v.  Michels  (S3  Mich.  15;,  207, 

.   -    1659. 
Lovejoy  v.  Murray  (3  WalL  1),  156. 
Lovelace  v.  Stewart  (23  Mo. 
Lovell  v.  St.  Louis  Mut.  L.  Ins.  Co. 

(Ill  U.  S.  264.  1090,  1 
Lowv.  Austin   20  N.  Y.  1-1 
Lowv.  Freeman   12  111.  467  .  41. 
Low  v.  Pew  (108  Mass.  347  s  199,  200, 

201. 
Lowber  v.  Bangs  (2  Wall.  728),  1145. 
Lowber  v.  Connit  (36  Wis.  176),  449. 
Lowdon  v.  Fisk   27  S.  W.  E.  E       9 
Lowe  v.   Harwood  (139   Mass.   133), 

1089. 
Lowe  v.  Turpie  (147  Ind.  652>.  1755. 
Lowe  v.  Young  (59  Iowa.  364).  1031. 
Lowell  v.  Boston  &  L  R  Co.  (23  Pick, 

I      1001. 
Lowell  v.  Lewis  1  Mason.  185),  S34 
Loweustein  v.  Bresler  (109  Ala.  326). 

1433. 
Lowman  v.  Excelsior  Stove  Pattern 

104  Ala.  367i.l302,  1304. 
Lowman  v.  Sheets  (124  Ind.  4 
Lowry  v.  Bourdieu  (2  Doug.  4!  - 


Lowry  v.  Dillman  (59  Wis.  197),  1031, 

Lowry  v.  Fisher  (2  Bush. 
Lowry  v.  Mehaffy  |  10  Watt  -     - 
Lowry  v.  Pinson  (2   Bailey,  L.  324  . 

970. 
Lowther  v.  Lord  Lowther  (13  Yes. 

95),  1719. 
Lovd  v.  Wight  (20  Ga.  574  .  7   - 
Lucas  v.  Campbell  (88  I1L  447 ..,  569, 

600,  693. 
Lucas  v.  Dixon  (22  Q.  B.  Div.  3e 

424. 
Lucas  v.  Darrien  (7  Taunt.  278),  1493. 
Lucas  v.  Nichols  (5  Gray,  309  ,  1127, 

1187. 
Lucas  v.  Wilkinson  (1  H.  &  N.  420), 

1466. 
Lucesco  Oil  Co.  v.  Brewer  (66  Pa.  - 

1163. 
Lucketts  v.  Townsend  (3  Tex.  119), 

Luckie  v.  Johnson  (89  Ga.  321),  1450. 
Lucy  v.  Monflet  (5  H.  &  N.  229),  1402. 
Ludden  v.  Hazen  (31  Barb.  650  ,  597, 

601. 
Ludlow  v.  Bowne  (1  Johns  1), 
Ludwig  v.  Fuller  (17  Me,  162),  380, 964, 

981 

Lu^er  Furniture  Co.  v.  Street  (6  OkL 

Lukens  v.  Aiken  (174  Pa.  St.    152  , 

1-39. 
Lukens    t.    Freiund  (27  Kan.   664), 

1349. 
Lumley  v.  Corbett  (18  Cal.  494),  1446. 
Lund  "v.  McCutchen  (S3  Iowa. 

210. 
Lundy  Furn.  Co.  v.  White  (128  Cal. 

569. 
Lunn  v.  Shermer  (93  N.  C.  164),  1843. 
Lupin  v.   Marie   (6  Wend.  77),  906, 

1482. 
Luptonv.  White   15  Yes.  Jr.  432),  25. 
Lush  v.  Wilkinson  (5  Yes.  3-7.,  974. 


cxl 


TAULE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Luthy   v.    Waterbury  (140  111.  664), 

126.-). 
Lyman  v.  Robinson  (14  Allen,  252), 

236. 
Lynch   v.   Curfman   (65  Minn.   170), 

1241,  1242,  1805. 
Lynch  v.  Daggett  (62  Ark.  592),  488, 

492. 
Lynch  v.  Dodge  (130  Mass.  458),  91, 

92. 
Lynch  v.  Johnson  (109  Mich.  640),  96, 

105. 
Lynch  v.  Murphy  (171  Mass.  307),  871, 

893, 936. 
Lynch  v.  Raleigh  (3  Ind.  273),  973. 
Lynch  v.  Stott  (67  N.  H.  589),  1028. 
Lynch  v.  Thompson  (61  Miss.  354).  145. 
Lynde  v.  Budd  (2  Paige  Ch.  191),  100, 

121. 
Lyne  v.  Wann  (72  Ala.  43),  970. 
Lynn  v.  Baltimore  &  Ohio  R.  Co.  (60 

Md.  404),  673. 
Lynn  v.  Chaters  (2  Ky.  521),  1719. 
Lyon  v.  Bertram  (20  How.  149),  1145, 

1805. 
Lyon  v.  Culbertson  (83  III.  33),  1031. 
Lyon  v.  Lenon  (108  Ind.  567),  25,  29. 
Lyon  v.  Railway  Passenger  Assur. 

Co.  (46  Iowa,  631),  963. 
Lyon  v.  Robbins  (46  111.  276),  946. 
Lyons  v.  Hamilton  (69  Iowa,  47),  953. 
Lyons  v.  Leahy  (15  Oreg.  8),  952,  953, 

956,  958,  978. 
Lyons  v.  Stills  (97  Tenn.  514),  660, 

1806. 
Maberly  v.  Sheppard  (10  Bing.  99), 

307,  370,  371. 
Macdonald  v.  Longbottom  (1  El.  & 

El.  987),  437. 
Mack   v.   Story   (57  Conn;  407),  556, 

601. 
Mack  v.  Tobacco  Co.  (48  Neb.  397),  49. 
Mackason's  Appeal  (42  Pa.  St.  330), 

956. 
Mackay  v.  Dick  (6  App.  Cas.   251), 

1106. 


Mackellar  v.  Pillsbury  (48  Minn.  396), 

960. 
Mackenzie  v.  Seeberger  (76  Fed.  R. 

108),  937. 
Mackey  v.  Swartz(60Iowa,710),  1380. 
Mackey  v.  Dillinger  (73  Pa.  St.  85), 

169. 
Mackie  v.  Cairns  (5  Cow.  547),  947. 
Maclay  v.  Harvey.  (90  111.  525),   244, 

247,  251. 
Maclean  v.  Dunn  (4  Bing.  722),  453. 
Macomber  v.  Macomber  ( —  R.  I.  — ), 

1423. 
Macomber  v.  Parker   (13   Pick.   175), 

206,  478,  524. 
Macon,  etc.  Ry.  Co.  v.  Meador  (65  Ga. 

705),  1588. 
Mactier  v.  Frith  (6  Wend.  103),  238, 

240,  244,  245,  251. 
Maddox  v.  Miller  (1  M.  &  S.  738).  132. 
Magee  v.  Atkinson  (2  M.  &  W.  442), 

1264. 
Magee  v.  Billingsley  (3  Ala.  679),  731, 

1208,  1320. 
Magee  v.  Catching  (33  Miss.  672),  692. 
Magnes  v.  Sioux  City  Nursery  Co.  (14 

Colo.  App.  219),  1633. 
Magniac  v.  Thompson  (32  U.  S.  348), 

955. 
Magruder  v.  Gage  (33  Md.  344),  733, 

736,  739,  740,  1181. 
Mahler  v.  Schloss  (7  Daly,  291),  691. 
Mahone  v.  Reeves  (11  Ala.  345),  916. 
Mahood  v.  Tealza  (26  La.  Ann.  108), 

1013, 1022. 
Mahurin  v.  Harding  (28  N.  H.  128), 

932. 
Maine  Mut.  Ins.  Co.  v.  Hodgkins  (66 

Me.  109),  266. 
Malcomson  v.  Wappoo  Mills  (88  Fed. 

R.  680),  1099. 
Mallory  v.  Willis  (4  N.  Y.  76),  21. 
Malone  v.  Minn.  Stone  Co.  (36  Minn. 

325),  508. 
Malsby  v.  Young  (104  Ga.  205),  1259. 
Mandel  v.  Butlers  (21  Minn.  391),  1807. 


TABLE   OF    CASES    CITED. 


cxli 


References  are  to  sections:  Vol.  I.  §§  1-797;  Vol.  n,  §§  798-1850. 


Mandelbaum  v.  Gregovitch  (17  Nev. 

87),  1046,  1051. 
Manhattan  Brass  Co.  v.  Reger  (168 

Pa.  St.  644),  898. 
Manhatten  Trust  Co.  v.  Sioux  City 

Cable  Co.  (76  Fed.  R.  658),  603. 
Mauheimer  v.   Harrington  (20    Mo. 

App.  297),  906. 
Manier  v.  Appling  (112  Ala.  663),  240. 
Manly  v.  Scoot  (1  Sid.  109),  184. 
Maiui  v.  Everston  (32  Md.  336),  1265, 

129a 

Mann  v.  Glauber  (96  Ga.  795),  1181. 
Mann  v.  Stowell  (3  Pin.  220),  913. 
Mann  v.  Thompson  (86  Ga.  347),  60a 
Manning  v.  Albee  (11  AlleD,520),915, 

917,  936,  937. 
Manning  v.  Hollenbeck  (27  Wis.  202), 

1490. 
Manny  v.  Glendinning  (15  Wis.  50), 

663,080,  814. 
Manstield  v.  Converse  (8  Allen,  182), 

23. 
Mansfield  v.  Gordon  (144  Mass.  168), 

1)7. 
Mansfield  v.  Trigg  (113  Mass.  350),  912, 

i:;;is. 
Mansfield  v.  Watson  (2  Iowa,  111),  90. 
Manson  v.  Felton  (13  Pick.  206),  91,  92. 
Mansur,  etc.  Co.  v.  Beeman,  etc.  Co. 

(—  Tex.  Civ.  App.  — r-),  603. 
Manton  v.  Moore  (7  T.  R.  67),  380,  381, 

964.  987. 
Manton  v.  Ray  (18  R.  I.  672),  1718, 

1727. 
Manwaring  v.  O'Brien  (75  Minn.  542), 

953. 
Ma  pes  v.  Burns  (72  Mo.  App.  411),  909. 
Marble  v.  Moore  (102  Mass.  443),  492, 

725. 
Margetson  v.  Wright  (8  Bing.  454), 

L270,  1272. 
Marina,  The  (19  Fed.  R.  760).  603,  649. 
Marine  Bank  v.  Wright  (48  N.  Y.  1), 

777. 


Markham  v.  Jandon  (41  N.  Y.  235), 

1787. 
Markle  v.  Hatfield  (2  Johns.  455),  1422. 
Marks  v.  Van  Eeghen  (57  U.  S.  App. 

149),  1090. 
Marks  v.  Van  Elghen  (85  Fed.  R.  853), 

1707. 
Marland  v.  Stan  wood  (101  Mass.  470), 

1161. 
Marlatt  v.  Clary  (20  Ark.  251),  1794, 

1798. 
Marlow  v.  Pitfield  (1  P.  Wins.  558), 

132. 
Marmon  v.  Harwood  (124  111.  104),  950, 

957,  958,  959. 
Mannont  v.  State  (48  Ind.  21),  55. 
Marquardt   v.   Flaughter   (60   Iowa, 

158),  L39. 
Marquette   Mfg.   Co.   v.  Jeffery  (49 

Mich.  2*3).  588,  51)7.  51(0. 
Marsden  v.  Cornell  (62  X.  Y.  215),  992. 
Marseilles  Mfg.   Co.   v.   Morgan   (12 

Neb.  66),  1489. 
Marsh  v.  Hyde  (3  Gray,  331),  362.  395. 
Marsh   v.  Milligan   (3  Jurist,  N.  S., 

979),  178a 
Marsh  v.  Rouse  (44  N.  Y.  643),  358, 

376,  386,  388.    . 
Marshall  v.  Drawhorn  (27  Ga.  275), 

1272. 
Marshall  v.  Duke   (51  Ind.  62),  836, 

1302. 
Marshall  v.  Green  (L.  R.  1  C.  P.  Div. 

35),  337,  361. 
Marshall  v.  Lynn  (6  M.  &  W.  109), 

447. 
Marshall  v.  Macon  County  Savings 

Bank  (108  N.  C.  639),  1697. 
Marshall   v.  Perry  (67  Me.  78),  816, 

1263,  1805. 
Marston  v.  Knight  (29  Me.  341),  816, 

1805. 

Martin  v.  Adams  (104  Mas..  362),  677. 
Martin  v.  Black  (21  Ala.  721),  244.  245. 
I  Martin  v.  Byron  (Dud.  203),  121. 


cxlii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol  II,  §§  798-1850. 


Martin  v.  Cole  (104  U.  S.  30),  1254. 
Martin  v.   Duncan  (47  111.  App.  84), 

964. 
Martin  v.  Haubner  (2G  Canada  Sup. 

R.  142),  428. 
Martin  v.  Hill  (12  Barb.  631).  649. 
Martin  v.  Hurl  but  (9  Minn.  142),  508. 
Martin  v.  Jordan  (60  Me.   531),  881, 

937. 
Martin  v.  Mathiot  (14  S.  &  R.  214), 

580. 
Martin  v.  Quinn  (37  Cal.  55),  1467. 
Martin  v.  State  (59  Ala.  34).  55. 
Martin  v.  United  States  (2  T.  B.  Mon. 

89),  1455. 
Martindale  v.  Booth  (3  B.  &  Ad.  498), 

960. 
Martindale  v.  Smith  (1  Q.  B.  389),  484, 

1522. 
Martindale  v.  Smith  (1  Ad.  &  El.  389), 

1682. 
Martineau  v.  Kitching  (L.  R.  7  Q.  B. 

436),  524,  529. 
Martinsburg  v.  Potomac  R.  Co.  (114 

U.  S.  549),  673. 
Martz  v.  Putnam  (117  Ind.  392',  402, 

1158. 
Marvin  v.  Wallis  (6  Ell.  &  B.  726), 

385,  964,  1489. 
Marvin  Safe  Co.  v.  Morton  (48  N.  J. 

L.  410),  599,  649. 
Mary  and  Susan,  The  (1  Wheat.  25), 

1181. 
Maskelinski  v.  Wazsineski  (48  N.  Y. 

S.  R.  407),  1305. 
Mason  v.  Bond  (9  Leigh,  181),  960. 
Mason  v.  Chappell  (15   Gratt.  572), 

1235,  1245,  1314,  1349. 
Mason  v.  Decker  (72  N.  Y.  595),  425, 

449,  450,  1618,  1682. 
Mason  v.  Smith  (130  N.  Y.  474),  1380. 
Mason  v.  Vestal  (88  Cal.  396),  946. 
Mason  v.  Waite  (17  Mass.  560),  17. 
Mason  v.  Wheeler  (2  N.  Y.  Misc.  523), 

941. 


Mason  v.  Wilson  (43  Ark.  172),  1588, 

1592,  1595. 
Massachusetts  Loan  Co.  v.  Welch  (47 

Minn.  183),  1385. 
Massey  v.  Sladen  (L.  R.  4  Ex.  13),  1416. 
Massey  v.  State  (74  Ind.  368),  16. 
Masson  v.  Bovet  (1  Denio,  69),  918, 

1411,  1431. 
Mast  v.  Pearce  (58  Iowa,  579),  1254. 
Masters  v.  Teller  (7  Okla.  668),  964, 

1187. 
Masterton  v.  Mayor  of  Brooklyn  (7 

Hill,  61),  1704,  1709,  1710,  1765. 
Materne  v.  Horwitz  (50  N.  Y.  Super. 

Ct.  41),  996. 
Materne  v.  Horwitz  (101  N.  Y.  469), 

1019,  1027,  1041. 
Matheny  v.  Mason  (73  Mo.  677),  836, 

1302,  1796. 
Mather  v.  Am.  Express  Co.  (138  Mass. 

55),  1760. 
Mathes  v.  Dob~chuetz  (72  111.  438),  130. 
Mathews  v.  Baxter  (L  R.  8  Ex.  132), 

87. 
Mathews  v.  Bliss  (22  Pick.  48),  872. 
Mathews  v.  Cowan  (59  111.  341),  543, 

545,  555. 
Mathews  v.  Hamilton  (23  111.  470),  1455. 
Mathews  v.  McElroy  (79  Mo.  202),  605. 
Mathews  v.  Smith  (8  Houst.  22),  599, 

611. 
Mathison  v.  Prescott  (86  111.  493),  953. 
Matlock  v.  Reppy  ( —  Ark.  — ),  1843. 
Mattesou  v.  Holt  (45  Vt.  336),  820, 

1805. 
Matthews  v.  American  Central  Ins. 

Co.  (154  N.  Y.  449),  1103. 
Matthews  v.  Lucia  (55  Vt  308),  569, 

619. 
Matthews  v.  Parker  (Oliphant,  228), 

1270. 
Matthews  v.  Reinhardt  (43  111.  App. 

169),  955. 
Matthewman,  Case  of  (L.  R.  3  Eq. 

Cas.  781),  135. 


TABLE    OF    CASES    CITED. 


cxliii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Mattbiessen.  etc.  Co.  v.  McMahon  (38 

N.  J.  L.  530),  74,  355,  416. 
Mattice  v.  Allen  (3  Abb.  App.  Dec. 

248),  416. 
Mattoon  v.  Rice  (102  Mass.  236),  1350. 
Mattox  v.  Creig  (2  Bibb,  584),  1440. 
Maulding  v.  Steele  (105  111.  644),  1633. 
Max  v.  Harris  (125  N.  C.  345),  1840. 
Maxfield  v.  Carpenter  (84  Hun,  450), 

1451. 
Max  field  v.  Schwartz  (45  Minn.  150), 

934,  1841. 
Maxted  v.  Fowler  (94  Mich.  106),  936. 
Maxwell  v.  Brown  (39  Me.  98),  365. 
Maxwell  v.  Brown  Shoe  Co.  (114  Ala. 

304),  903,  901. 
Maxwell  v.  Lee  (34  Minn.  511),  1337, 

L393. 
Maxwell  v.  Tufts  (8  N.  M.  396),  599, 

603. 
May  v.  State  Nat.  Bank  (59  Ark.  614), 

974. 
May  v.  Ward  (134  Mass.  127),  437, 443. 
Mayer  v.  Child  (47  Cal.  142),  331. 
Mayer  v.  McCreery  (119  N.  Y.  434), 

228. 
Mayer  v.  Taylor  ^69  Ala.  403),  202. 
May  hew  v.  Thayer  (8  Gray,  172),  185. 
Maynard  v.  Maynard  (49  Vt.  297),  869, 

935. 
Maynard  v.  Render  (95  Ga.  652),  1391. 
Mayor  of  Baltimore  v.  Eschbach  (18 

Md.  282),  191. 
Mayor  of  Baltimore  v.  Reynolds  (20 

Md.  1),  191. 
Mc  Adams  v.  Cates  (24  Mo.  223),  869, 

935. 
McAfee  v.  Busby  (69  Iowa,  328),  966. 
McAleer  v.  Horsey  (35  Md.  439),  892, 

937,  1843. 
McAlister  v.  Safley  (65  Iowa,  719), 

1154. 
McAllister  v.  Smith  (17  111.  328),  1043. 
McAlpin  v.   Cassidy  (17    Tex.   449), 

1281. 
McAlpin  v.  Lee  (12  Conn.  129),  1844. 


McArthur  Co.  v.  Old   Second  Nat. 

Bank  ( —  Mich.  — ),  779. 
McBride  v.  Silverthorne  (11  Up.  Can. 

Q.  B.  545),  210. 
McCaa  v.  Elam  Drug  Co.  (114  Ala. 

74),  1345,  1822. 
McCaffrey  v.  Woodin  (65  N.  Y.  459), 

202. 
McCall  v.  Powell  (64  Ala.  254),  582. 
McCandless  v.  Young  (96  Pa.  St.  289), 

875. 
McCarren  v.  McNulty  (7  Gray,  139), 

660.  664,  666. 
McCarthy   v.  Henderson   (138  Mass. 

310),  119,  585. 
McCarty  v.  Blevins  (5  Yerg.  195),  200. 
McCarty  v.  Gordon  (16  Kan.  35),  731. 
McCarver  v.   Nealey  (1   G.   Greene, 

360),  1455. 
McCausland  v.  Ralston  (12  Nev.  195), 

947. 
McClain  v.  Davis  (77  Ind.  419),  76. 
McClellau  v.  Scott  (24  Wis.  81),  1841. 
McClelland  v.  Scroggin  (35  Neb.  536), 

30. 
McClintock's  Appeal  (71  Pa.  St.  365) 

336. 
McClintock  v.  Einick  (87  Ky.  160), 

1235,  1237,  1269. 
McClung  v.  Kelley  (21  Iowa,  508),  508, 

1340. 
McClure  v.  Briggs  (58  Vt.  82),  666. 
McClure  v.  Evartson  (14  Lea,  495), 

1461. 
McClure  v.  Forney  (107  Pa.  St.  414), 

960),  988. 
McClure  v.  Jefferson  (85  Wis.   208), 

1380,  1392,  1395. 
McClure  v.  Jeffrey  (8  Ind.  79),  834. 
McClure  v.  Williams  (65  111.  390),  1255. 
McConib  v.  Donald  (82  Va.  903),  564, 

583,  585,  599.  603. 
McComb  v.  Wright  (4  Johns.  Ch.  659), 

461. 
McCombs  v.  McKennan  (2  Watts  &  S. 

216j,  1151,  1643. 


cxliv 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


McComber  v.  Parker  (13  Pick.   182), 

519. 
McConihe  v.  Railroad  Co.  (20  N.  Y. 

495),  755. 
McConnel  v.  Murphy  (L.  R.  3"  P.   C. 

203),  1167,  1168,  1169. 
McConnell  v.  Brillhart  (17  111.  354), 

425. 
McConnell  v.  Hughes  (29  Wis.  537), 

210,  498,  527. 
McConnell  v.  Kitchens  (20  S.  C.  430), 

1046,  1050. 
McCorcl  v.  Laidley  (87  Ga.  221),  1643. 
McCorkell  v.  Carhoff  (90  Iowa,  545), 

932,  1251. 
McCormick  v.  Basal  (46  Iowa,  235), 

1090,  1092. 
McCormick  v.  Hadden  (37  111.  370), 

491,  1193. 
McCormick  v.   Keith   (8  Neb.    143), 

1455. 
McCormick  v.   Kelly  (28  Minn.  135), 

1272,  1285. 
McCormick  v.  Littler  (85  111.  62),  84. 
McCormick  v.  Muth  (49  Iowa,  536), 

139. 
McCormick  v.  Larson  (45  N.  Y.  265;, 

1390,  1392. 
McCormick  v.  Stevenson  (13  Neb.  70), 

604. 
McCormick  v.  Wood,  etc.  Co.  (72  Ind. 

518),  1455. 
McCormick  Harv.  Mach.  Co.  v.  Bal- 

fany  (78  Minn.  370),  1674,  1688. 
McCormick  Macb.  Co.  v.  Brovver  (94 

Iowa,  144),  1806,  1812. 
McCormick  Harvester  Co.  v.  Brower 

(88  Iowa,  607),  823,  1134,  1243,  1384. 
McCormick  Harv.  Mach.  Co.  v.  Cal- 

len  (48  Neb.  849),  603. 
McCormick  Harv.  Mach.  Co.  v.  Ches- 

rown  (33  Minn.  32),  670,  1392,  1402. 
McCormick  Mach.  Co.  v.  Cochran  (64 

Mich.  636),  668,  1402. 
McCormick  Mach.  Co.  v.  Courtnght 

(54  Neb.  18),  1803. 


McCormick  Harvester  Co.   v.  Hart- 
man  (35  Neb.  629),  1384. 
McCormick  Harv.  Mach.  Co.  v.  Koch 

(8  Okl.  374),  623. 
McCormick  Harv.  Mach.  Co.  v.  Knoll 

(57  Neb.  790).  1805,  1806. 
McCormick  Mach.  Co.  v.  Markert  (107 

Iowa,  340),  1089,  1676, 1696. 
McCormick  Harv.  Co.  v.  Martin  (32 

Neb.  723),  1380,  1387. 
McCormick  Harv.  Mach.  Co.  v.  Rich- 
ardson (89  Iowa,  525),  228,  242. 
McCormick  Harvester  Co.  v.  Russell 

(86  Iowa,  556),  1242,  1384,  1403. 
McCormick  Co.  v.  Williams  (99  Iowa, 

601),  651. 
McCoy  v.  Artcher  (3  Barb.  323),  1302. 
McCracken  v.  West  (17  Ohio,  16),  878. 
McCraw  v.  Gilmer  (83  N.  C.  162),  1481. 
McCray  Refrigerator   Co.  v.  Woods 

(99  Mich.  269),  1254, 1311, 1314, 1349. 
McCrea  v.  Purmort  (16  Wend.  460), 

449. 
McCullis  v.  How  (3  N.  H.  348),  124. 
McCulloch  v.  Eagle  Ins.  Co.  (1  Pick. 

278),  244,  247. 
McCulloch  v.  Hutchinson  (7  Watts, 

434),  956. 
McCulloch  v.  McKee  (16  Pa.  St.  289), 

1455. 
McCullough  v.  Baker  (47   Mo.  401), 

1713. 
McCullough  v.  Porter  (4  W.  &  S.  177), 

32. 
McCurdy  v.   Rogers  (21    Wis.   197), 

245. 
McDaniels  v.  Lapham   (21  Vt.  222), 

1420. 
McDonald  v.  Bervick  (51  Mich.  79), 

226,  234. 
McDonald  v.  Hewett  (15  Johns.  349), 

41,  508. 
McDonald  v.  Hodge    (5    Hayw.    85), 

1440. 
McDonald  v.  Timber  Co.  (4  Pick.  47), 

1820. 


TABLE    OF    OASES    CITED. 


cxlv 


References  are  to  sections:  Vol. 

McDonald  Mfg.  Co.   v.  Thomas  (53 

Iowa,  560),  1235,  1244,  1245,  1246. 
McDonough  v.  Elam  '1  La.  491),  8. 
McDonough    v.    Hey  man   (38    Mich. 

334),  1445. 
McDonough  v.  Prescott  (62  N.  H.  600), 

960. 
McDonough   v.  Sutton  (35  Mich.  1), 

543. 
McDougall  v.  Elliott  (20  Up.  Can.  Q. 

B.  299),  714. 
McElroy  v.  Seery  (61  M&  389),  434. 
McElwee    v.    Metropolitan    Lumber 

Co.  (37  U.  S.  App.  266),  1-7. 
McElwee  v.  Lumber  Co.  (69  Fed.  R. 

302),    L479,    1  181,    1  199,    L501,   1513, 

1515.  1517,  1521,  L602,  L604 
McEwan  v.  Smith  (2  H.  of  L.  Cas. 

309),  524,  1505,  151  1.  L526. 
McEwen  v.   Morey  (60  111.  32),  207,  ; 

L659. 
McFadden  v.  Mitchell  (54  Cal.  628  . 

95 1. 
McFadden  v.  Ross  (126  Ind.  341),  955. 
Mr  Far  land  v.  Farmer  (42  N.  H.  386), 

628. 
McFarland  v.  Newman  (9  Watts,  55), 

1237,  1242,  1268 
McFetridge  v.  Piper  (40  Iowa,  627). 

1582. 
McGar  v.  Williams  (26  Ala.  469),  874. 
Mc<  raughey  v.  Richardson  (148  Mass. 

608),  1248. 
McGavoek  v.  Puryear  (6  Cold.  34), 

L025. 
McGee  v.  Campbell  (7  Watts.  545  , 

947. 
McGiffin  v.  Baird  (62  N.  Y.  329),  1796. 
McGinnis  v.  Savage  (29  W.  Va.  362), 

564. 
McGlade  v.  McCormick  (57  N.  J.  L. 

430),  1810. 
Mel  loldrick  v.  Willits  (52  N.  Y.  612), 

149,  165,  269,  887,  912,  1411. 
McGourkey  v.  Railway  Co.  (146  U.  S. 

536),  650. 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

McGovern  v.  Hern  (153  Mass.  308), 

434,  435,  436. 
McGowin  v.  Remington  (12  Pa.  St. 

56),  1727. 
McGrath  v.  Donnelly  (131  Pa.  St,  549), 

183. 
McGrath  v.  Gegner  (77  Md.  331),  1147, 

1148,  1736. 
McGrath  v.  Vanaman  (53  N.  J.  Eq. 

459),  175. 
McGraw  v.  Fletcher  (35  Mich.  104), 

1251,  1259,  1348.  . 
McGraw  v.  Solomon  (83  Mich.  442), 

H2:;.  1121. 
Mcl  Iregor  v.  Ross  (90  Mich.  103).  1087. 
McGrew  v.  Forsythe  (31  Iowa,  181), 

1235,  1238,  1244" 
McGrew   v.   Produce   Exchange  (85 

Tenn.  572  ,  203,  1031,  1032. 
McGrew  v.  Thayer  (24  Ind.  App.  578), 

25. 
McGuire  v.  Callahan  (19  Ind.  128),  87. 
McGuire  v.  West  (— Ky.  App. — ), 

967. 
McHany  v.  Schenk  (88  111.  357),  1456. 
McHose  v.  Fulmer  (73  Pa,  St.  365), 

1743. 
Mcllvaine  v.  Harris  (20  Mo.  457),  342. 
Mcintosh  v.   Hill  (47  Ark.  303),  585, 

599. 
Mclntyre  v.  Kline  (30  Miss.  361),  754. 
Mclntyre  v.  Preston  (5  Gilm.  48),  451. 
Mclver  v.  Williams  (83  Wis.  570),  564. 
McKaney  v.  Cooper  (81  Ga.  679),  121. 
McKanna  v.  Merry  (61  111.  177),  131, 

132. 
McKay  v.  McKenua  (173  Pa.  St.  581), 

1195. 
McKee  v.  Bainter  (52  Neb.  604),  736, 

1181. 
McKee  v.  Eaton  (26  Kan.  226),  834. 
McKee  v.  Garcelon  (60  Me.  165),  966, 

981,  1194. 
McKee  v.  Jones  (67  Miss.  405),  1058. 
McKellar  v.  Pillsbury  (48  Minn.  396), 

711. 


cxlvi 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  79&-1850. 


McKenzie  v.  Culbreth  (60  N.  C.  531), 

1419,  1420. 
McKenzie  v.  Donnell   (151  Mo.  461), 

74. 
McKercher  v.  Curtis  (35  Mich.  478), 

1736. 
McKibbin  v.  Brown  (1  McCarter,  13), 

228. 
McKibbin  v.  Brown  (2  McCarter,  498), 

228. 
McKibbin  v.  Martin  (04  Pa.  St.  352), 

904,  900,  907. 
McKinder  v.  Littlejohn  (4  Ired.  L. 

198),  1417. 
McKindly  v.  Dunham  (55  Wis.  515), 

1447,  1448,  1450. 
McKinnell  v.  Robinson  (3  M.  &  W. 

435),  1012. 
McKinney  v.  Bradlee  (117  Mass.  321), 

676,  677,  678. 
McKinnon  v.  McEwan  (48  Mich.  106), 

1831. 
McKinnon  v.  Mcintosh  (98  N.  C.  89), 

1235,  1237. 
McKinnon  Mfg.  Co.  v.  Alpena  Fish 

Co.  (102  Mich.  221),  1346. 
McKnight  v.   Dunlop  (5  N.  Y.  537), 

362,  401,  420,  1730,  1740. 
McLachlin  v.  Brett  (105  N.  Y.  391), 

1452. 
McLane  v.  Johnson  (43  Vt.  48),  974. 
McLaughlin  v.  Marston  (78  Wis.  670), 

733,  741,  1180, 1184. 
McLaughlin  v.  Salley  (46  Mich.  219), 

17. 
McLay  v.  Perry  (44  L.  T.,  N.  S.,  152), 

1167. 
McLaughlin  v.  Piatti  (27  Cal.  452), 

714. 
McLees  v.  Hale  (10  Wend,  420),  1131. 
McLennan  v.  Ohmen  (75  Cal.  558), 

1235. 
McLeod  v.  Jones  (105  Mass.  403),  020, 

1191. 
McLeod  v.  O'Neill  ( —  Ky.  — ),  977. 
McLoud  v.  Wakefield  (70  Vt,  558),  200. 


McLure  v.  Sherman  (70  Fed.  R.  190), 

412. 
McMahon  v.  Sloan  (12  Pa.  St.  229), 

154. 
M.  Marian  v.  English  (74  Pa.  St.  296), 

963,  988. 
McMaster  v.  Emerson  ( —  Iowa, ), 

202. 
McMillan  v.  Fox  (90  Wis.  173),  1100. 
McMillen  v.  Lee  (78  111.  443),  180. 
McMinn  v.  Richmonds  (6  Yerg.  9). 

121. 
McMullen  v.  Williams  (5  Ont.  App. 

518),  1255. 
McMurtry  v.  Brown  (6  Neb.  368),  451. 
McNail  v.  Ziegler  (68  111.  224),  1481. 
McNaughton  v.  Haldeman  (160  Pa. 

St.  144),  1032. 
McNeal  v.  Braun  (53  N.  J.  L.  617),  733, 

1184. 
McNeal  v.  Emerson  (15  Gray,  384),  336, 

626,  1191. 
McNeil  v.  Tenth  Nat.  Bank  (46  N.  Y. 

325),  154,  156,  157,  162. 
McPhail  v.  Gerry  (55  Vt.  174),  603. 
McPherson  v.  Acme  Lumber  Co.  (70 

Miss.  649),  619. 
McPherson  v.  Gale  (40  111.  308),  708. 
McQuaid  v.  Ross  (77  Wis.  470),  446, 

1254. 
McQuaid  v.  Ross  (85  Wis.  492),  1314, 

1355. 
McRea  v.  Merrifield  (48  Ark.  100),  585, 

588,  599, 019. 
McSparran  v.  Neely  (91  Pa.  St.  17),  88. 
McVeigh   v.  Ritenour   (40   Ohio  St. 

107),  970. 
McVicker  v.  May  (3  Pa.  St.  224),  904, 

966. 
Mead  v.  Bunn  (32  N.  Y.  280),  1841. 
Mead  v.  Case  (33  Barb.  202),  305. 
Mead  v.  Degolyer(16  Wend.  632),  513, 

1162. 
Mead  v.  Gardiner  (13  R.  I.  257),  960. 
Mead  v.  Noyes  (44  Conn.  487),  984. 
Mead  v.  Parker  (115  Mass.  413),  437. 


TABLE   OF    CASES    CITED. 


cxlvii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  79S-1850. 


Header  v.  Cornell  (58  N.  J.  L.  375), 

839,  1372,  1850. 
Meads  v.  Martin  (84  Mich.  30G),  138. 
Means  v.  Bank  of  Randall  (146  U.  S. 

620),  792. 
Means  v.  Williamson    (37    Me.    556), 

1198, 1665. 
Means  v.  Nichols  (41  111.  207),  1393. 
Mears  v.  Waples  (3  Houst.  581),  906. 
Meason  v.  Phillips  (Addis.  346),  1440. 
Mechanical  Boiler  Cleaner  Co.  v.  Kell- 

ner(62N.  J.  L.  544),  393,  316,  359, 

400. 
Mechanics'  Bank  v.  Farmers*  Bank 

(60  N.  Y.  40),  169. 
Medbury  v.  Watson  (6  Mete.  246),  874, 

I8ia  ' 
Medicke  v.  Sauer  (61  Minn.   15),  646. 
Medina  v.  Stougliton  (1  Salk.  210), 

931. 
Meding  v.  Stoughton  (1   Ld.  Raym. 

593  ,  1795. 
Mee  v.  McNider  (109  N.  Y.  500),  492, 

739,  741. 
Meeker  v.  Johnson  (3  Wash.  247),  549. 
Meeker  v.  Wilson  (1  Gall.   419),  987, 

1201. 
Megary  v.  Funtis  (5  Sandf.  Sup.  Ct. 

376),  1453. 
Meickley  v.   Parsons  (66  Iowa,  63), 

1272,  1334,  1392. 
Meiklereid  v.  West  (1  Q.  B.  Div.  128), 

1549. 
Meincke  v.  Falk  (55  Wis.  427),  314, 

324, 
Meehan  v.  Sharp  (151  Mass.  565),  331, 

380. 
Melchert  v.  American  Union  Tel.  Co. 

(11  Fed.  R.  193),  1031,  1034,  1036. 
Melchoir  v.   McCarty  (31  Wis.  252), 

1058. 
Melledge  v.  Boston  Iron  Co.  (5  Cush. 

158),  1424. 
Mellish  v.  Motteux  (Peake,  115),  869. 
Melvin  v.  Lamar  Ins.  Co.  (80  111.  446), 

1456. 


Memphis,  etc.  R.  Co.  v.  Freed  (38  Ark. 

614),  1532. 
Menken  v.  Baker  (40  App.  Div.  608), 

964. 
Menkins  v.  Lightner  (18  111.  282),  87. 
Mentz  v.  Newwitter  (122  N.  Y.  491), 

434. 
Merchant  v.  Chapman  (4  Allen,  362), 

757,  1182. 
Merchants'  Bank  v.  Fraze  (9  Ind.  App. 

161),  1311,  1354 
Merchants'  Bank  v.  Hibbard  (48  Mich. 

118),  166,  709,  1507. 
Merchants'  Bank  v.  Lovejoy  (84  Wis. 

601),  202. 
Merchants'  Bank  v.  Thomas  (69  Tex. 

237),  593,  619,  632. 
Merchants'  Bank  v.  Union  R.  &  T. 

Co.  (69  N.  Y.  373),  1556. 
Merchants'  Banking    Co.  v.  Phoenix 
Bessemer  Steel  Co.  (5  Ch.  Div.  205), 
1506,  1507,  1547,  1548. 
Merchants'  Exchange  Bank  v.  Mc- 

Graw  (59  Fed.  R.  972),  777,  779. 
Merchants  Nat.  Bank  v.  Bangs  (102 
Mass.  291),   502,   721,  725,  730,  736, 
740,  788. 
Meredith  v.  Meigh  (2  E.  &  B.  364),  393, 

1181,  1496. 
Men-,  v.  Ansell  (3  Wil.  275),  1327. 
Merriman  v.  Chapman  (32  Conn.  146), 

1320. 
Merriam  v.  Cunningham   (11  Cush. 

40),  132. 
Merriam  v.  Field  (24  Wis.  640),  1254, 

1255,  1260,  1340. 
Merriam  v.  Pine  City  Lumber  Co.  (23 

Minn.  314),  875. 
Merriam  v.  Stearns  (10  Cush.   257), 

1057. 
Merriam  v.  Wilkins  (6  N.  H.  432),  121. 
Merrick  v.  Bradley  (19  Md.  50),  1265, 

1271. 
Merrick  v.  Wiltsie  (37  Minn.  41),  1817. 
Merrill  v.  Florida  Land  Co.  (60  Fed. 
R  17),  936. 


cxlviii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol  II,  §§  708-1850. 


Merrill  v.  Hunnewell  (13  Pick.  213), 

714. 
Merrill  v.  Hurlburt  (63  Cal.  494),  964. 
Merrill  v.   Mclntire   (13   Gray,   157), 

1016. 
Merrill  v.  Nightingale  (39  Wis.  247), 

1344.  1817. 
Merrill  v.  Parker  (24  Me.  89),    1190, 

166a. 
Merrill  v.  Stanwood  (52  Me.  65),  1437. 
Merrill  Chem.  Co.  v.  Nickells  (66  Mo. 

App.  678),  901,  914. 
Merrill  Furniture  Co.  v.  Hill  (87  Me. 

17),  348,  549,  551,  1407. 
Merriman  v.  Knox  (99  Ala.  93),  1050. 
Merriman  v.  McCormick  Mach.  Co. 

(96  Wis.  600',  1745. 
Merritt  v.  Clason  (12  Johns.  102),  451, 

456. 
Merritt  v.  Johnson  (7  Johns.  473),  755, 

759,  761. 
Merritt  v.  Millard  (4  Keyes,  208),  999. 
Merritt  v.  Railroad  Co.  (16  Wend.  586), 

1713. 
Merritt  v.  Robinson  (35  Ark.  483),  931. 
Merry  v.  Green  (7  Mees.  &  W.  623), 

273. 
Mers  v.  Franklin  (68  Mo.  127),  263. 
Mersey  Steel  &  Iron  Co.  v.  Naylor  (9 

App.  Cas.  434),  1085, 1141, 1142, 1145, 

1147,  1148. 
Mershon  v.  Moors  (76  Wis.  502),  649. 
Meservey  v.  Gray  (55  Me.  540),  1027. 
Messenger  v.  Pratt  (3  Lans.  234),  1345. 
Messer  v.   Woodman  (22  N.  H.  172), 

351,  386,  389. 
Messmore  v.  N.  Y.  Shot  Co.  (40  N.  Y. 

422),  1763,  1764. 
Methudy  v.  Ross  (10  Mo.  App.  101), 

235. 
Metropolitan  Nat.  Bank  t.  Benedict 

Co.  (36  U.  S.  App.  604),  49. 
Metropolitan  Trust  Co.  v.  Columbus 

S.  R.  Co.  (93  Fed.  R.  702),  603. 
Meyer  v.  Everth  (4  Camp.  22),  446, 447, 

1327. 


Meyer  v.  Green  (21  Ind.  App.  138), 

1817. 
Meyer  v.  Krauter  (56  N.  J.  L.  696), 

1251. 
Meyer  v.  Richards  (163  U.  S.  385),  1311, 

1332. 
Meyer  v.  Stone  (46  Ark.  210),  1448. 
Meyer  v.  Thomson  (16  Oreg.  194),  367, 

369. 
Meyers  v.  Turner  (17  111.  179),  834. 
Meyerstein  v.  Barber  (L.  R.  2  C.  P. 

37),  1194. 
Miamisburg  Twine  Co.  v.  Wolhuter 

(71  Minn.  484),  1331. 
Michael  v.  Bacon  (49  Mo.  174),  1014, 

1023. 
Michael  v.  Curtis  (60  Conn.  363),  334. 
Michelstetter  v.  Weiner  (82  Wis.  298), 

391. 
Mich.  Cent.  R.  Co.  v.  Phillips  (60  111. 

190),  543,  600,  792,  1194. 
Michigan  Stove  Co.  v.  Harris  (81  Fed. 

R.  928),  264. 
Michigan  Stove  Co.  v.  Harris  (54  U.  S. 

App.  137),  1375. 
Middlebury  College  v.  Chandler  (16 

Vt.  683).  130,  132. 
Middlesex  Co.  v.  Osgood  (4  Gray,  447), 

734,  757,  1124,  1187,  1412,  1674. 
Middleton  v.  Stone  (111  Pa.  St.  589), 

32. 
Mighell  v.  Dougherty  (86  Iowa,  480), 

324. 
Milburn  v.  Belloni  (34  Barb.  607),  1281. 
Milburn  v.  Belloni  (39  N.  Y.  53),  1823. 
Milburn  Mfg.  Co.  v.  Peak  (89  Tex.  209), 

49. 
Milburn  Wagon  Co.   v.  Nisewarner 

(90  Va.  714),  1240. 
Mildred  v.  Hermano  (8  App.  Cas.  874), 

1 450. 
Miles,  Ex  parte  (15  Q.  B.  Div.  39),  1561. 
Miles  v.  Edsall  (7  Mont.  185),  588,  597. 
Miles  v.  Gorton  (2  Cromp.  &  M.  504), 

1487,  1513. 
Miles  v.  Lingerman  (24  Ind.  385),  79. 


TABLE    OF    CASES    CITED. 


cxlix 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 

Miller  v.  State  (39  Ind.  267),  1191. 


Miles  v.  Richards  (Walk.  477),  950. 
Miles  v.  Richwine  (2  Rawle,  199),  1456. 
Miles  v.  Roberts  (34  N.  H.  245),  1125. 
Mill  Co.  v.  Finley  (34  S.  W.  R.  311), 

924. 
Mill   Dam   Foundery  v.    Hovey   (21 

Pick.  417),  1075. 
Millard  v.  Republic  Bank  (3  MacAr- 

thur,  54),  1461. 
Millard   v.  Webster  (54  Conn.  415), 

1510,  1592. 
Miller  v.  Amnion  (145  U.  S.  421),  996, 

1045,  1046. 

Miller  v.  Barber  (66  N.  Y.  558).  936. 
Miller  v.  Browarsky  (130  Pa.  St.  372), 

960. 
Miller  v.  Buchanan  (10  Ind.  App.  474), 

937. 
Miller  v.  Burch  (11   S.  W.   R   307), 

1690. 
Miller  v.  Edmonston  (8  Blackf.  891), 

1455. 
Miller  v.  Finley  (26  Mich.  249),  88. 
Miller  v.  Godfrey  (2  Colo.  App  177\ 

1410. 
Miller  v.  Hyde  (161  Mass.  472),  58. 
Miller  v.  Lea  (25  Md.  396),  1452. 
.Miller  v.  Marckle  (21  I1L  152),  947. 
Miller   v.  Moore  (83  Ga.   684),   1275, 

1334,  1392. 
Miller  v.   McDonald  (13    Wis.   673), 

1265,  1271. 
Miller  v.  Pancoast  (29  N.  J.  L.  250), 

960. 
Miller  v.    Post  (1   Allen,  434),  1045, 

1046,  1050. 

Miller  v.  Prescott  (163  Mass.  12),  1080. 
Miller  v.  Scherder  (2  N.  Y.  262),  L357. 
Miller  v.  Seaman   (176   Pa.    St.  291), 

508,  516.  741. 
Miller  v.  Smith  (26  Minn.  248),  98,  106, 

112,  113. 
Miller  v.  Smith  (1  Mason,  437),  809 

964. 
Miller  v.  Somerset  Co.  ( —  Ky.  — ), 

1128. 

k 


Miller  v.  Steen  (30  Cal.  402),  569,  590. 
Miller  v.  Stevens  (100  Mass.  518),  1327. 
Miller  v.  Van  Tassel  (24  CaL  459),  1302, 

1309. 
Miller  Brewing  Co.  v.  De  France  (20 

Iowa,  395),  1028. 
Mi  Hi  ken   v.   Skillings  (89  Mo.   180), 

1805. 
Milliken  v.  Thorndike  (103  Mass.  382), 

875. 
Milliken  v.  Warren  (57  Me.  46),  1515. 
Millirons  v.  Dillon  (100  Ga.  656),  1732. 
Mills  \.  Ball  (2  Bus.  &  Pul.  457),  1556, 

1577. 
Mills  v.  Camp  (14  Conn.  219).  960. 
Mills  v.  Graham  (4  Bos.  &  Pul.  140), 

120. 
Mills  v.  Howeth  (19  Tex.  257),  953. 
Mills  v.  Hunt    (20    Wend.   434),  350, 

351. 
Mills  v.  Thompson  (72  Mo.  367),  963. 
Milne   v.   Marwood  (15    C.   B.   778), 

1223. 
Milner  v.  Patton  (49  Ala.  423),  1013, 

1024. 
Milnes  v.   Gery  (14  Ves.   400),    213, 

074. 
Milwaukee  Boiler  Co.  v.  Duncan  (87 

Wis.  120),  1254, 1311, 1314, 1349, 1350, 

1814 
Miner  v.  Bradley  (22  Pick.  457),  912. 
Miner  v.  Medbury  (6  Wis.  295),  875, 

892. 
Mineral  Point  R  Co.  v.  Barron  (83 

111.  365),  1043. 
Miners'  Ditch  Co.  v.  Zellerbach  (37 

Cal.  543),  141. 
Ming  v.  Woolfolk  (116  U.  S.  599),  879, 

884. 
Minock  v.  Shortridge  (21  Mich.  304), 

96,  101, 121. 
Minneapolis    Harvester    Works    v. 

Hally  (27  Minn.  495),  620.  837. 
Minneapolis  Threshing  Co.  v.  Hutch- 
ins  (65  Minn.  89),  1374,  1389. 


cl 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Minneapolis,  etc.  Ry.  Co.  v.  Columbus 

Rolling  Mills  (119  U.  S.  149),  227, 

229. 
Minnesota  Linseed  Oil  Co.  v.  Collier 

White  Lead  Co.  (4  Dill.  431),  251. 
Minnesota    Lumber    Co.    v.    White- 
breast  Coal  Co.  (160  111.  85),  264, 

1038. 
Minnesota  Thresher  Co.  v.  Hanson  (3 

N.  Dak.  81),  1380,  1384,  1395. 
Minnesota  Thresher  Co.  v.  Lincoln  (4 

N.  Dak.  410),  1396. 
Minor  v.  Michie  (Walk.  24),  1125. 
Mirabita  V.  hnperial  Ottoman  Bank 

(3  Exch  Div.  164),  778,  780,  783,  787, 

792. 
Misner  v.  Granger  (9  111.  69),  1340. 
Mississippi  R.  R.  Co.  v.  Green  (9  Heisk. 

588),  1099. 
Missouri    Tar.    Ry.   Co.   v.    Heiden- 

heimer  (82  Tex.  195),  782, 1564,  1568. 
Mitchell  v.  Cockburn  (2  H.  Bl.  379), 

1012, 1015. 
Mitchell  v.  Gile  (12  X.  H.  390),  15,  16. 
Mitchell  v.  La  Page  (Holt's  N.  P.  253), 

268. 
Mitchell  v.  Le  Clair  (165  Mass.  308). 

495,  725,  1187,  1671.  1675,  1694, 
Mitchell  v.  Read  (84  N.  Y.  556),  1776. 
Mitchell  v.  Smith  (1  Bin.  110),  1045. 
Mitchell  v.  Treanor  (11  Ga.  324),  184. 
Mitchell  v.  West  (55  N.  Y.  107),  960. 
Mitchell  v.  Winslow  (2  Story,  644), 

202. 
Mittelholzer  v.  Tullarton  (6  Ad.  &  El. 

989),  1267. 
Mixer  v.  Coburn  (11  Mete.  559),  1311. 
Mixer  v.  Cook  (31  Me.  340),  478,  543, 

549. 
Mixer  v.  Howarth  (21  Pick.  205),  305, 

307,  324 
Mizell  v.  Burnett  (4  Jones,  249),  428. 
Moakes  v.  Nicolson    (19  C.  B„  N.  S., 

290),  735,  740,  775,  779. 
Mobile  Bank  v.   Fry  (69   Ala.   348), 

714. 


Mobile  Fruit  Co.  v.  McGuire  (—  Minn. 

).  739. 

Mobile  Sav.  Bank  v.  McDonnell  (89 

Ala.  434),  954. 
Mo.ly  v.  Gregson  (L.  R.  4  Ex.  49).  1216, 

1329,  1331,  1310.  1342,  bit'',.  1377. 
Moens  v.  Heyworth  (10  M.  &  W.  157), 

876. 
Moffatt  v.  Green  (9  Ind.  198),  714. 
Moffet  v.  Moffet  (90  Iowa,  442),  178. 
Moffett-West  Drug  Co.  v.  Byrd  (—Ind. 

Terr. — ),  1771. 
Moffitt-West  Drug  Co.  v.  Byrd  (— U.  S. 

A  pp.  — ).  1762. 
Mogan  v.  Turner  (4  Tex.  App.  192), 

1664. 
Mohney  v.  Evans  (51  Pa.  St.  80),  132. 
Mohr  v.    Boston  &  Alb.  R.  Co.  (106 

Mass.  67),  1577. 
Mohr  v.  Dillon  (80  Ga.  572),  426. 
Mohr  v.  Miesen  (47  Minn.  228),  1031. 
Mohr  v.  Tulip  (40  Wis.  66),  69,  72.     . 
Mohrman  v.  State  (105  Ga.  709).  55. 
Moline,  etc.  Co.  v.  Pereau  (52  Neb. 

577),  1382. 
Moline  Plow  Co.  v.  Carson  (72  Fed.  R. 

387),  937. 
Moline  Plow  Co.  v.  Rodgers  (53  Kan. 

743),  49,  686,  687. 
Moline  Plow  Co.  v.  Witham  (52  Kan. 

185),  599,  603. 
Moline  Scale  Co.  v.  Beed  (52  Iowa, 

307),  754,  1091,  1092,  1696. 
Moliter  v.  Robinson   (40  Mich.  200), 

960. 
Moller  v.  Tuska  (87  N.  Y.  166),  909. 
Mollett  v.  Wackerbarth  (5  Com.  B. 

181),  472. 
Molm  v.  Barton  (27  Minn.  530),  960. 
Monaghan  v.  Insurance  Co.  (53  Mich. 

238),  97. 
Monaghan  v.  Reid  (40  Mich.  665),  1028. 
Moncreif  v.  Wilkinson  (93  Ala.  373), 

935. 
Money  v.  Fisher  (92  Hun,  347),  1235, 

1269. 


TABLE    OF    CASES    CITED. 


cli 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Monroe  v.  Smith  (79  Pa.  St.  459),  975. 
Monte  Allegre,  The  (9  Wheat.  616), 

1307. 
Montgomery  v.  Forbes (14*  Mas-.  2 19), 

l  129. 
Montgomery  Furniture  Co.  v.  I  lard- 
away  (104  Ala.  100),  188,  185,  492. 
Montgomery   Iron   Works  v.   Smith 

(98  Ala.  844),  819,  824 
Montreal  River  L.  Co.  v.  Mihills  (80 

\\  is.  540),  875,  892 
Moody  v.  Aiken  (50  Tex.  65),  334. 
Moody  v.  Blake  (117  Mass.  23),  149, 

154,  269,887. 
Moody  v.  Brown  (34  Me.  107%  754,  755, 

1665. 
Moody  v.  Wright  (18  Meto.  'J'.'.  202 
Moog  v.  Benedicks  1 19  Ala.  512),  960. 
Moog  v.  Hamian  (93  Ala.  503),  1045, 

1046. 
Mooney  v.  Burohard    (84    End 

1794. 
Mooney  v.  Davis  (75  Midi.  188),  868, 

878,  895,  896. 
Mooney  v.  Miller  (102  Masa  217),  880, 

936. 
Moore  v.  Byrom  (10  S.  C.  452),  202. 
Moore  v.  Campbell  (10  Ex.  323),  447, 

806. 
Moure  v.  Copp  (119  Cal.  429),  266. 
Moore  v.  Crofton  (3  Jo.  &  La  T.  438), 

804. 
Moore  v.  Fitz  (59  X.  EL  572),  1 128. 
Moore  v.  Goodwin  |  13  Hun,  543),  666. 
Moore  v.  Hays  (12  Ind.  App  476),  391. 
Moore  v.  Kendall  (2  Pin.  99),  1053. 
Moore  v.  Louisiana  Nat.  Bank  (44  La. 

Ann.  99).  ;?'.'. 
Moore  v.  Love  (57  Miss.  765),  400. 
Moore  v.   Mountcastle  (61   Mo.    124), 

128,  432. 
Moore  v.  Murdock  (26  Cal.  514),  1052. 
Moore  v.  McKinlay  (5  Cal.  471),  1311. 
Moore  v.  Perrott  (2  Wash.  1).  754. 
Moore  v.  Pierson  (6  Iowa,  279 1,  247. 
Moore  v.  Pollock  (50  Neb.  900),  1455. 


Moore  v.  Potter  (155  N.  Y.  481),  1629, 

1630, 1692. 
Moore  v.  Railway  Co.  (7  Lans.  39), 

642. 
Moore  v.  Recek  (163  111.  17),  880. 
Moore  v.  Shultz  (13  Pa.  St.  98),  9. 
Moore  v.  Sibbald  (24  Up.  Can.  Q.  B. 

,  689,  690. 
Moore  v.  Thompson  (6  Mo.  353),  947. 
Moore  v.   Williamson  (44  N.  J.  Eq. 

496),  953. 
Moore  (E.  A.)  Furn.  Co.  v.  Sloane  (166 

111.  457),  1380,  1817. 
Moorehead    v.    Davis   (92  Ind.    303), 

1794. 
Moors  v.  Kidder  (106  N.  Y.  32),  776, 

780. 
More  v.  Lott  (13  Nev.  376),  1539,  1571, 

1595. 
Morehouse  v.  Comstock  (42  Wis.  626), 

1247,  1340.  1380,  1392.  1395. 
Moreland  v.  Myall  (14  Bush,  474),  342. 
Morey  v.  Enke  (5  Minn.  392),  1125. 
Morford  v.  Peck  (46  Conn.  380),  909. 
Morgan  v.  Bain  (L.  R.  10  C.  P.   15), 

1094  1095. 

v.  Dod  (3  Colo.  551),  39. 
Morgan  v.  Gath(3  H.  &  C.  748).  1161. 
Morgan  v.  Kin--  (28  W.  Ya.  1).  702. 
Morgan  v.  Miller  (62  Cal.  492).  966. 
Morgan  v.  McKee  (77  Pa.  St.  228),  831, 

912,  1145, 1150,  1163,  1165,  1401,  1846. 
Morgan  v.  Perkins  (1  Jones'  L.  171), 

524. 
Morgan  v.   Skiddy  (62    N.   Y.  319), 

878. 
Morgan-Gardner     Electric     Co.     v. 

Brown  (193  Pa.  St.  351),  581. 
Moriarity  v.  Stofferan   (89  111.  528), 

915. 
Morin  v.  Martz  (13  Minn.  191),  449. 
Morningstar  v.  Cunningham  (110  Ind. 

328),  25. 
Morissey  v.  Broomal  (37  Neb.  766), 

1032. 
Moritz  v.  Hoffman  (35  I1L  553),  973. 


clii 


TABLE   OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Morley  v.  Attenborough  (3  Exch.  500), 

1301,  1302,  1311. 
Morrill  v.  Blackinan  (42  Conn.  324), 

901. 
Morrill  v.  Kilner  (113  111.  318),  973. 
Morrill  v.  Wallace  (9  N.  H.  Ill),  862, 

1229. 
Morris  v.  Bowen  (52  N.  H.  416),  1281. 
Morris  v.  Bradley  Fertilizer  Co.  (64 

Fed.  R  55),  1344. 
Morris  v.  Cohn  (55   Ark.    401),  1679, 

1698,  1706. 
Morris  v.  Hyde  (8  Vt.  352),  960. 
Morris  v.  Levison  (1  C.  P.  Div.   155), 

1168. 
Morris  v.  Rexford  (18  N.  Y.  552),  542, 

554. 
Morris  v.  Shryock  (50  Miss.  590),  526, 

1571,  1592,  1595. 
Morris  v.  Thompson  (85  111.  16),  1302. 
Morris  v.  Wibaux  (159  111.  627),  1165, 

1167,  1633,  1643. 
Morris  v.  Winn  (98  Ga.  482),  482. 
Morris  Run  Coal  Co.  v.  Barclay  Coal 

Co.  (68  Pa.  St.  173),  208,  1040. 
.  Morrison  v.  Adoue  (76  Tex.  255),  892, 

895,  901. 
Morrison  v.  Dingley  (63  Me.  553),  711, 

714. 
Morrison  v.  Oium  (3  N.  Dak.  76),  964. 
Morrison  v.  Woodley  (84  111.  192),  702, 

714. 
Morrissey  v.  Broomal  (37  Neb.  766), 

1031. 
Morrow  v.  Campbell  (30  Wis.  90),  527. 
Morrow  v.  Reed  (30  Wis.  81),  527,  528. 
Morrow  v.  Turney  (35  Ala.  131),  692. 
Morrow  Shoe  Mfg.  Co.  v.  New  Eng- 
land Shoe  Co.  (60  Fed.  R.  341),  892, 

906,  923. 
Morse  v.  Bellow  (7  N.  H.  549).  1132. 
Morse  v.  Brackett  (98  Mass.  205),  912, 

916,  1398. 
Morse  v.  Ely  (154  Mass.  458),  118. 
Morse  v.  Hutchins  (102  Mass.   439), 
1843. 


Morse  v.  Moore  (83  Me.  473),  346, 1156, 

1334,  1335,  1393,  1395, 1811. 
Morse  v.  Sherman  (106  Mass.  430),  542, 

564,  725,  1670,  1671,  1674,  1675. 
Morse  v.  Union  Stock  Yards  (21  Oreg. 

289),  1334,  1344,  1345,  1393. 
Morton  v.  Dean  (13  Mete.  385),  439, 

456,  461. 
Morton  v.  Frick  (87  Ga.  230),  603,  604. 
Morton  v.  Ragan  (5  Bush,  334),  964. 
Morton  v.  Steward  (5  I1L  App.  533), 

96.  122, 
Morton  v.  Tibbett  (15  Q.  B.  428),  361, 

368,  369.  404. 
Mosby  v.  Goff  (21  R.  I.  494),  610. 
Moseby  v.  Gainer  (10  Tex.  393),  953. 
Moseley  v.  Shattuck  (43  Iowa,  540), 

599. 
Moseley  v.  Vanhooser  (6  Lea,  286), 

1055. 
Moses  v.  Mead  (1  Denio,  378),  1311, 

1319,  1320,  1356,  1357. 
Moses  v.  Rogers  (62  Vt.  84),  628. 
Moses  v.  Stevens  (2  Pick.  332),  109. 
Moses  v.  Trice  (21  Gratt.  556),  1423. 
Moss  v.  Averell  (10  N.  Y.  449),  142. 
Moss  v.  Exchange  Bank  (102  Ga.  808), 

1039. 
Moss  v.   Sweet  (16  Q.  B.   493),  681, 

682. 
Mott  v.  Palmer  (1  N.  Y.  564),  646. 
Mottram   v.   Heyer   (5    Denio,   629). 

1585,  1586,  1608. 
Mouthrop  v.   Hyett    (105  Ala.   493), 

1830. 
Moulton  v.  Camroux  (2  Exch.  502),  74. 
Moulton  v.  Kershaw   (59  Wis.   316), 

224. 
Moulton  v.  Warren  Mfg.  Co.  (—  Minn. 

— ),  1718. 
Mount  v.  Derrick  (5  Hill,  455),  928. 
Mount  v.  Scholes  (120  111.  394),  1422. 
Mt.  Hope  Iron  Co.  v.  Buffi ngton  (103 

Mass.  62),  490. 
Mt.  Leonard  Milling  Co.  v.  Insurance 

Co.  (25  Mo.  App.  259),  32. 


TABLE    OF   CASES   CITED. 


cliii 


References  are  to  sections:  Vol. 

Mountain  City  Mill  Co.  v.  Butler  (109 

Ga.  469),  634. 
Mountjoy  v.  Metzger  (9  Phila.   10), 

1090. 
Mowbray  v.  Cady  (40  Iowa,  604),  658, 

679. 
Mowry  v.  Kirk  (19  Ohio  St.  370),  1119, 

1129. 
Moyce  v.  Newington  (L.  R.  4  Q.  B. 

Div.  32),  923,  924. 
Moyer  v.  Lederer  (50  111.  A  pp.  94),  894, 

895. 
Mucklow  v.  Mangles  (1  Taunt.  318), 

759,  761. 
Mudge  v.  Oliver  (1  Allen,  74),  267. 
Mul  I  tall  v.  Quinn  (1  Gray,  105),  200. 
Mullain  v.  Thomas  (43   Conn.   252), 

1255. 
Mullen  v.  Wilson  (44  Pa.  St.  413),  973. 
Muller  v.  Eno  (14  N.  Y.  597),  1395, 

1805, 1818. 
Mulock  v.  Wilson  (19  Colo.  296),  973. 
Mulvaney  v.  Rosenberger  (18  Pa.  St. 

203),  1272. 
Mumford  v.  Canty  (50  111.  370),  649, 

1043. 
Mumford  v.  McPherson  (1  Johns.  413), 

1255. 
Mumford  v.  Whitney  (15  Wend.  380). 

336. 
Munro  v.  Gairdner  (3  Brev.  31),  878. 
Munson  v.  Washband  (31  Conn.  303), 

132. 
Munt  v.  Stokes  (4  Term  R.  561),  999. 
Munzer  v.  Stern  (105  Mich.  523),  918. 
Murch  v.  Wright  (46  111.  487),  572, 

600,  693. 
Murchie  v.  Cornell  (155  Mass.  60),  346, 

1340. 
Murdy  v.  Skyles  (101  Iowa,  549\  139. 
Murphy  v.  Barefield  (27  Ala.  634),  688. 
Murphy  v.  Boese  (L.  R.  10  Exch.  126;, 

460. 
Murphy  v.  Gay  (37  Mo.  535),  1235. 
Murphy  v.  Kastner  (50  N.  J.  Eq.  214), 

1456. 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Murphy  v.  Mulgrew  (102  Cal.  547),  960, 

964,  966. 
Murphy  v.  McGraw  (74  Mich.   318), 

1826. 
Murphy  v.  Railroad  Co.  (55  Iowa,  473), 

639. 
Murphy  v.  State  (1  Ind.  366),  714. 
Murray  v.  Brooks  (41  Iowa,  45),  1281, 

1285,  1288. 
Murray  v.  Carlin  (67  111.  286),  90. 
Murray  v.  Doud  (167  111.  368),  1690. 
Murray  v.   Harway  (56  N.  Y.  337), 

804. 
Murray  v.  Riggs  (15  Johns.  571),  963. 
Murray  v.  Smith  (4  Daly,  277),  1287. 
Murry  v.  Ocheltree  (59  Iowa,  435), 

1032. 
Muser  v.  Lissner  (67  How.  Pr.  509), 

1411. 
Muskegon  Booming  Co.  v.  Underbill 

(43  Mich.  629),  1482,  1600. 
Muskegon  Curtain  Roll  Co.  v.  Key- 
stone Mfg.    Co.   (135  Pa.  St.  132), 

1702. 
Musselman  v.  Cravens  (47  Ind.  1),  72, 

73. 
Mustard  v.  Wohlford  (15  Gratt.  329), 

109. 
Muston  v.   Gladwin   (6  Q.   B.   953), 

1073. 
Mutual  L.  Ins.  Co.  v.  Watson  (30  Fed. 

R.  653),  1031. 
Myer  v.  Western  Car  Co.  (102  U.  S.  1), 

603. 
Myer  v.  Wheeler  (65  Iowa,  390),  1148, 

1150,  1320. 
Myers  v.  Field  (146  111.  50),  139. 
Myers  v.  Harvey  (2  Pen.  &  W.  478), 

580. 
Myers  v.  Meinrath  (101  Mass.  366), 

998,  1053. 
Myers  v.  Trescott  (59  Hun,  395),  227. 
Myers  v.  Turner  (17  111.  179),  834. 
Mygatt  v.  Tarbell  (78  Wis.  351),  53. 
Naglebaugh  v.  Mining  Co.  (21  Ind. 

A  pp.  551),  1045. 


cliv 


TABLE   OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Nairn  v.  Ewalt  (51  Kan.  355),  893. 
Nance  v.  Nance  (84  Ala.  375),  950. 
Nash  v.  Brewster  (39  Minn.  530),  711. 
Nash  v.  Drew  (5  Gush.  422),  175. 
Nash  v.  Lull  (102  Mass.  60),  834. 
Nash  v.  Meggett  (89  Wis.  486),  1423. 
Nash  v.  Mitchell  (71  N.  Y.  199),  137. 
Nash  v.  Towne  (72  U.  S.  689),  447,  831, 

838,  1846,  1850. 
Nashua  Iron  Co.  v.  Brush  (50  U.  S. 

App.  461),  1344,  1346,  1817,  1834. 
Nathan  v.  Giles  (5  Taunt.  558),  788. 
National  Bank  v.  Goodyear  (90  Ga. 

711),  49. 
National  Bank  v.  Hall  (101  U.  S.  43), 

228,  229. 
National  Bank  v.  Matthews  (98  U.  S. 

621),  1046. 
National  Bank  v.  Merchants'  Bank 

(91  U.  S.  92),  779. 
National  Bank  v.   Morris  (17   App. 

Cas.  287),  953. 
National  Bank  v.  Peck  (8  Kan.  660), 

834. 
National  Bank  v.  Whitney  (103  U.  S. 

99),  1046,  1426,  1433,  1435. 
National  Bank  of  Chicago  v.  Bailey 

(115  Mass.  228),  740,  788. 
National  Bank  of  Chambersburg  v. 
Buckeye  I.  &  B.  Works  (46  111.  App. 
526),  964. 
National  Bank  of  Commerce  v.  C, 
B.  &  Q.  R.  Co.  (44  Minn.  224),  154, 
545,  554,  555,  1433. 
National  Bank  of  Cairo  v.  Crocker 

(111  Mass.  163),  740,  788. 
National  Bank  of  Dakota  v.  Taylor  (5 

S.  Dak.  99),  934,  942. 
National   Cash    Reg.   Co.   v.   Broek- 

smit  (103  Iowa,  271),  598. 
National  Cash  Reg.  Co.  v.  Ison  (94  Ga. 

463),  175. 
National  Cash  Reg.  Co.  v.  Maloney 

(95  Iowa,  573),  603. 
National   Cash  Reg.  Co.  v.  Schwab 
( —  Iowa,  — ),  603. 


National   Car  L.   L.  Builder   v.    Cy- 
clone Steam   Snow   Plow  Co.  (49 
Minn.  125),  32. 
National   Cordage    Co.   v.   Sims   (44 

Neb.  148),  49. 
National  Exch.  Bank  v.  Watson  (13 

R.  I.  91),  955. 
National  Furnace  Co.  v.  Keystone 

Mfg.  Co.  (110  111.  427),  264. 
National    Horse    Importing    Co.    v. 

Novak  (95  Iowa,  586),  1822. 
National   Refining   Co.   v.  Miller  (1 

S.  D.  548),  254. 
National  Water  Pur.  Co.  v.  New  Or- 
leans  Water  Works    Co.   (48  La. 
Ann.  773),  1154. 
Nattin  v.  Riley  (54  Ark.  30),  606,  628, 

643. 
Nauman   v.   Ullman  (102   Wis.   92), 

1836. 
Naumberg  v.  Young  (44  N.  J.  L.  331), 

1254 
Nawkins  v.  Berry  (5  Gilm.  36),  1242. 
Navassa  Guano  Co.  v.  Commercial 

Guano  Co.  (93  Ga.  92),  1167. 
Naylor  v.  Dennie  (8  Pick.  199),  1571, 

1577, 1578. 
Neal  v.  Boggan   (97   Ala.   611),   549, 

1407,  1482. 
Neal  v.  Flint  (.88  Me.  72),  1255. 
Neal  v.  Gillaspy  (56  Ind.  451),  1307. 
Neal  v.  Hardware  Co.  (122  N.  C.  104), 

1774. 
Neal  v.  Shewalter  (5  Ind.  App.  147), 

1690. 
Neal  v.  Williams  (18  Me.  391),  150, 

151. 
Neasham  v.  McNair  (103  Iowa,  695), 

139. 
Neave  v.  Arntz  (56  Wis.  174),  1235, 

1237. 
Necker  v.  Harvey  (49  Mich.  517),  878. 
Needham  v.  Dial  (4  Tex.  Civ.  App. 

14),  1357. 
Neidefer  v.  Chastain  (71   Ind.  363), 
936. 


TABLE    OF   CASES    CITED. 


civ 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Neil  v.  Cheves  (1  Bailey,  537),  543. 
Neiler  v.  Kelley  (69  Pa.  St.  403),  1787. 
Neinieyer  Lumber  Co.  v.  Burlington 
R.  Co.  (54  Neb.  321),  733,  736,  741, 
797,  1180. 
Neldon  v.  Smith  (36  N.  J.  L..148),  508, 

652,  1134. 
Nellis  v.  Bradley  (1  Sandf.  560),  919. 
Nellis  v.  Clark  (20  Wend.  24),  947. 
Nelson  v.  Biggers  (6  Ga.  205),  1270. 
Nelson  v.  Brown   (44  Iowa,  455),  24, 

25,  28. 
Nelson  v.  Brown  (53  Iowa,  555),  25. 
Nelson  v.  Cowing  (6  Hill,  336),  1281. 
Nelson  v.  Kilbride  (113  Mich.  637),  17, 

1411. 
Nelson  v.  Kinney  (93  Tenn.  428),  955. 
Nelson  v.  Martin  (105  Pa.  St.  229),  820. 
Nelson  v.  Overman  (19  Ky.  L.  161), 

1378. 
Nelson  v.  Railroad   Co.  (2  111.  App. 

180),  51,  752. 
Nesbit  v.  Burry  (25  Pa,  St.  208),  514. 

530,  532. 
Ness  v.  Singer  Mfg.  Co.  (68  Minn. 

237),  178. 
Netterville  v.  Barber  (52  Miss.  168), 

138. 
Nettleton  v.  Sikes  (8  Mete.  34),  334, 

336,  337,  626,  1161. 
New  England   Trust  Co.  v.  Abbott 

(162  Mass.  148),  212,  1718,  1727. 
New  England  Dressed  Meat  &  Wool 
Co.  v.  Standard  Worsted  Co.  (165 
Mass.  328),  437,  451,  458,  714,  756, 
758. 
New  Hampshire  Ins.  Co.  v.  Noyes  (32 

N.  H.  345),  132. 
New  Haven  Wire  Co.  Cases  (57  Conn. 

352).  597,  601,  780. 
New  Home  Sewing  tMachine  Co.  v. 

Bothane  (70  Mich.  443),  628. 
New  Jersey  Knowles  Loom  Works 

v.  Vacher  (57  N.  J.  L.  490),  650. 
New  Market  Co.  v.  Emboy  ( —  Ky. 
— ),  1774. 


New  York  Sec.  &  Tr.  Co.  v.  Capital 

Ry.  Co.  (77  Fed.  R.  529),  646. 
New  York  Tarter  Co.  v.  French  (154 

Pa.  St.  273),  749,  1183. 
New  York  News  Pub.  Co.  v.  National 
Steamship  Co.  (148  N.  Y.  39),  1442. 
New  Zealand  Land  Co.  v.  Ruston  (5 

Q.  B.  Div.  474),  1452. 
Newark  v.  Essex  Club  (53  N.  J.  L. 

99),  55. 
Newberry  v.  Wall  (35  N.  Y.  Super. 

Ct.  106),  464. 
Newberry  v.  Wall  (65  N.  Y.  484),  464. 
Newberry  v.  Wall  (84  N.  Y  576),  463, 

464. 
Newby  v.  Rogers  (40  Ind.  9),  425, 1136. 
Newcomb  v.  Brockett  (16  Mass.  161), 

1097. 
Newcomb  v.  Cabell  (10  Bush,  460), 

1194. 
Newcomb  v.  Railroad  Co.  (115  Mass. 

230),  788. 
Newcomb  v.  De  Roos  (2  El.  &  El.  271), 

262. 
Newell  v.  Fisher  (11  S.  &  M.  431),  87. 
Newell  v.  Radford  (L.  R.  3  C.  P.  52), 

430,  434. 
Newell  v.  Randall  (32  Minn.  171),  868, 

893. 
Newell  v.  Smith  (53  Conn.  72),  211, 

276. 
Newhall  v.  Central  Pac.  R.  Co.  (51 

Cal.  345),  166,  1567. 
Newhall  v.  Kingsbury  (131  Mass.  445), 

573,  588,  596,  613,  693. 
Newhall  v.  Langdon  (39  Ohio  St.  87), 

701,  702,  706,  1413. 
Newhall  v.  Vargas  (13  Me.  93),  1526, 
1528,   1530,   1537,   1548,  1579,  1603, 
1604,  1606,  1612. 
Newhall  v.  Vargas  (15  Me.  314),  1603, 

1604,  1612,  1672. 
Newlove  v.  Callaghan  (86  Mich.  301), 

877. 
Newman  v.  Claflin  (107  Ga.  89),  863, 
895. 


clvi 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Newman  v.  Kirk  (45  N.  J.  Eq.  677), 

954. 
Newsorne  v.  Thornton  (6  East,  17), 

1534,  1564. 
Newton  v.  Winchester  (16  Gray,  208), 

1148. 
Nevada  Bank  v.  Portland  Nat.  Bank 

(59  Fed.  R.  338),  895. 
Nichol  v.  Godts  (10  Exch.  191),  1331, 

1333,  1339. 
Nichol  v.  Steger  (2  Tenn.  Ch.  328),  127. 
Nichol  v.  Steger  (6  Lea,  393),  118, 128. 
Nicholls  v.  Le  Feuvre  (2  Bing.  N.  C. 

83),  1571. 
Nichols  v.  Ashton  (155  Mass.  205),  32, 

583,  588,  597. 
Nichols  v.  Johnson  (10  Conn.  192),  434, 

437. 
Nichols  v.  Knowles  (31  Minn.  489), 

1384,  1386. 
Nichols  v.  Martin  (35  Hun,  168),  1452. 
Nichols  v.  Michael  (23  N.  Y.  264),  892, 

906,  909,  915. 
Nichols  v.  Morse  (100  Mass.  523),  757, 

1662. 
Nichols  v.  McCarthy  (53  Conn.  299), 

948. 
Nichols  v.  Nichols  (61  Vt.  426),  953. 
Nichols  v.  Patten  (18  Me.   231),  947, 

964. 
Nichols  v.  Pinner  (18  N.  Y.  295),  906. 
Nichols  v.  Ruggles  (76  Me.  25),  603. 
Nichols  v.  Scranton    Steel    Co.    (137 

N.  Y.  487).  1090. 
Nichols  v.  Wyman    (71    Iowa,    160), 

1254. 
Nichols  &  Shepard  Co.  v.  Snyder  (78 

Minn.  502),  96,  105. 
Nicholson  v.  Bower  (1  El.  &  El.  172), 

365,  1592. 
Nicholson  v.  Bradfield  Union  (L.  R. 

1Q.  B.  620).  1158,  1161. 
Nicholson  v.  Pease  (61  Vt.  534),  1455. 
Nicholson  v.  Spencer  (11  Ga.  607),  130. 
Nicholson  v.  Taylor  (31  Pa.  St.  128), 
546. 


Nicholson  v.  Wilborn    (13    Ga.   467), 

127,  129, 131. 
Nickerson  v.  Darrow  (5  Allen,  419), 

169. 
Nickol  v.  Thomas  (53  Ind.  42),  69,  72, 

73. 
Nickoll  v.  Ashton  (2  Q.  B.  298),  653, 

1100. 
Nield  v.  Burton  (49  Mich.  53),  909. 
Niemeyer  v.  Wright  (75  Va.  239),  1046, 

1051. 
Nightingale  v.  Chafee  (11  R.  I.  609), 

1423. 
Nightingale  v.  Eiseman  (121  N.  Y. 

288),  1400,  1461. 
Nightingale  v.  Withington  (15  Mass. 

272),  186. 
Nispel  v.  Laparle  (74  111.  306),  138. 
Niver  v.  Best  (10  Barb.  369),  947. 
Nives  v.  Nives  (15  Ch.  Div.  649),  1726. 
Nixon  v.  Beard  (111  Ind.  137),  1424. 
Nixon  v.  Brown  (57  N.  H.  34),  164. 
Noakes  v.  Morey  (30  Ind.  103),  407. 
Noble  v.  Googins  (99  Mass.  231),  938. 
Noble  v.  Hand  (163  Mass.  289),  1829. 
Noble  v.  Ward  (L.  R.  1  Ex.  117),  447. 
Noble  v.  Ward  (L.  R.  2  Ex.  135),  806. 
Noble  v.  Worthy  (45  S.  W.  R.  137), 

892,  893. 
Noel  v.  Karper  (53  Pa.  St.  97),  87. 
Noel  v.  Murray  (13  N.  Y.  167),  1125. 
Noel  v.  Wheatly  (30  Miss.  187),  1794. 
Nofsinger  v.  Ring  (71  Mo.  149),  673. 
Nogales  Club  v.  State  (69  Miss.  218), 

55. 
Nolan  v.  Jackson  (16  111.  272),  1456. 
Non-Magnetic  Watch  Co.,  In  re  (89 

Hun,  196),  755,  792. 
Nordyke  &  Marmon  Co.  v.  Kehlor 

(155  Mo.  643),  278. 
Norfolk  Southern  R.  Co.  v.  Barnes 

(104  N.  C.  25),  740,  793. 
Norman  v.  Phillips  (14  M.  &  W.  277), 

365,  393,  1181,  1496. 
Norniington   v.  Cook  (2  N.  Y.  Sup. 
423),  1161. 


TABLE    OF    CASES    CITED. 


clvii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Norrington  v.  Wright  (115  U.  S.  188), 

810,  1083, 1138, 1139, 1144, 1145, 1147. 

1148,  1155,  1156,  1158,  1161,  1208, 

1215,  1216. 

Norris  v.  Blair  (39  Ind.  90),  327,  439. 

Norris  v.  Harris  (15  Cal.  226),  831, 912, 

1083,  1398,  1846. 
Norris  v.  Norris  (9  Dana,  317),  947. 
North  v.  Forrest  (15  Conn.  400),  331. 
North  v.  Mendel  (73  Ga.  400),  429, 434, 

437. 
North  v.  Phillips  (89  Pa.  St.  250),  1031, 

1787. 
North  v.  The  Great  Northern  Ry.  Co. 

(2  Giff.  64),  1720. 
North  v.  Williams  (120  Pa.  St.  109), 

626,  627. 
Nortli  Penn.  R.  R.  Co.  v.  Commercial 

Bank  (123  U.  S.  727),  774. 
North  Pac.  Lum.  Co.  v.  Kerron   (5 

Wash.  214),  508,  723,  781. 
Northern  Trust  Co.  v.  Markell  (61 

Minn.  271),  1718. 
Northern    Central   Ry.  Co.   v.  Wal- 
worth (193  Pa.  St.  207),  1727. 
Northington,  Ex  parte  (37  Ala.  496), 

84. 
Northwestern  Cordage  Co.  v.  Rice  (5 
N.  Dak.  432),  1071,  1079,  1334,  1335, 
1393,  1836. 
Northwestern  Ins.  Co.  v.  Blankenship 

(94  Ind.  535),  74,  76,  79,  80. 
Northwestern  Iron  Co.  v.  Meade  (21 

Wis.  480),  227. 
Northwood  v.  Rennie  (28  C.  P.  202), 

122:5. 
Northy  v.  Field  (2  Esp.  613),   1577, 

1586. 
Norton  v.  Davison  (1  Q.  B.  401),  416. 
Norton   v.  Doolittle   (32  Conn.  405), 

962. 
Norton  v  Drey  fuss  (106  N.  Y.  90),  1391, 

1392. 
Norton  v.  Gale  (95  111.  533),  212. 
Norton  v.  Hummel  (22  111.  App.  194), 
651,  1202. 


Norton  v.  Melick  (97  Iowa,  564\  49. 
Norton  v.  Norton  (5  Cush.  524),  957. 
Norton  v.  Pilger  (30  Neb.  860),  603, 

604. 
Norton  v.  Sewall  (106  Mass.  143),  878. 
Norton  v.  Woodruff  (2  N.  Y.  153),  21, 

22,  513. 
Norwegian  Plow  Co.  v.  Clark  (102 

Iowa,  31),  46,  49. 
Norwegian  Plow  Co.  v.  Hanthorn  (71 

Wis.  529),  416,  960,  965. 
Noton  v.  Brooks  (7  Hurl.  &  N.  499), 

834. 
Nounnan  v.  Land  Co.  (81  Cal.  1),  870. 
Nowlen  v.  Colt  (6  Hill,  461),  642. 
Noyes  v.  Blodgett  (58  N.  H.  502),  1843. 
Nut  brown  v.  Thornton  (10  Ves.  163), 

1719,  1725. 
Nutter  v.   Wheeler    (Fed.   Cas.   No. 

10,384),  49. 
Nye  v.  Lowry  (82  Ind.  316),  451. 
Nye  v.  Merriam  (35  Vt.  438),  879. 
Nye  &  Scheider  Co.  v.  Snyder  (56 

Neb.  754),  1822. 
Nysewander  v.   Lowman   (124  Ind. 

584),  1843. 
Oakford  v.  Drake  (2  Fost.  &  Fin.  493), 

1530. 
Oakley  v.  Morton  (11  N.  Y.  25),  1103. 
Oakman  v.  Rogers  (120  Mass.  214), 

234. 
O'Bannon  v.  Relf  (7  Dana,  320),  1392. 
Obendorf  v.  Union  Bank  (31  Md.  126), 

1419. 
Ober  v.  Carson  (62  Mo.  209),  519,  527. 
O'Brien  v.  Jones  (91  N.  Y.  193),  1795, 

1796. 
O'Brien  v.  Norris  (16  Md.  122),  1540, 

1542,  1571. 
O'Brien  v.  Stambach  (101  Iowa,  40), 

975. 
O'Bryan  v.  Fitzpatrick  (48  Ark.  487), 

999,  1027. 
O'Bryan  v.  Glenn  (91  Tenn.  106),  909. 
Ocean  Steamship  Co.  v.  Ehrlich  (88 
Ga.  502),  1566, 1597. 


clviii 


TABLE   OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Ockington  v.  Richey  (41  N.  H.  275), 

499,  714. 
O'Connell  v.  Hotel  Co.  (90  Cal.  515), 

1709. 
OX'onner  v.  Arnold  (53  Ind.  203).  1455. 
O'Connor  v.  Clark  (170  Pa.  St.  318), 

163. 
Odell  v.  Boston  &  M.  R.  Co.  (109  Mass. 

50),  527,  733,  736,  757,  1189. 
O'Dell  v.  Lyda  (46   Ohio  St.  244),  26. 
Odom  v.  Riddick  (104  N.  C.  512),  72, 

74,  78. 
O'Donnell   v.   Leeman  (43  Me.  158), 

461. 
O'Donnell  v.  Sweeney  (5    Ala.   467), 

1054. 
O'Donnell  Brewing  Co.  v.  Farrar  (163 

111.  471),  937. 
O'Donohue  v.  Leggett  (134  N.  Y.  40), 

1372. 
Oester  v.  Sitlington  (115    Mo.  247), 

549. 
O'Farrell  v.  McClure  (—  Kan.  App. 

),  492,  502. 

Offutt  v.  Flagg  (10  N.  H.  46),  649. 
Ogden   v.   Beatty  (137  Pa.  St.  197), 

1817. 
Ogg  v.  Shuter  (1  C.  P.  Div.  47),  785, 

787,  797. 
Ogle  v.  Atkinson  (5  Taunt.  759),  773, 

1547,  1548. 
Ogle  v.  Earl  Vane  (L.  R.  2  Q.  B.  275), 

807,  1151,  1153,  1691,  1749. 
Ohio  Thresher  Co.  v.  Hensel  (9  Ind. 

App.  328),  1248,  1385. 
Oinson  v.  Heritage  (45  Ind.  73),  184. 
O'Keefe    v.    Kellogg    (15    111.    347), 

527. 
Okell  v.  Smith  (1  Stark.  N.  P.  107), 

1155,  1208. 
Olcott  v.  Bolton  (50  Neb.  779),  880, 

1839. 
Old  Colony  R.  R.  Co.  v.  Evans  (6  Gray, 

38).  142,  425,  449. 
Old  Dominion  St.  Co.  v.  Burckhardt 

(31  Gratt.  664),  908,  923. 


Oldham  v.  Kerchener  (79  N.  C.  106), 

1833. 
Oliphant  v.  Markham  (79  Tex.  543), 

1031. 
Oliver  v.  Fielden  (4  Exch.  135),  861. 
Oliver  v.  Houdlet  (13  Mass.  237),  97. 
Oliver  v.  Hunting  (44  Ch.  Div.  205), 

426. 
Oliver  v.  Moore  (12  Heisk.  482),  51, 

75a. 
Oliver  v.  Woodroffe  (4  M.  &  W.  650), 

124. 
Ollivant  v.  Bayley  (5  Q.  B.  288),  1347, 

1349. 
Olmsteadv.  Hotailing  (1  Hill,  317), 

892. 
Olson  v.  Mayer  (56  Wis.  551),  1380, 

1392. 
Olson  v.  Orton  (28  Minn.  36),  881. 
Olson  v.  Sharpless  (53  Minn.  91),  426, 

1736. 
Olvey  v.  Jackson  (106  Ind.  286),  1424. 
Olyphant  v.  Baker  (5  Denio,  379),  493, 

502,  518,  759. 
Omaha  Coal  Co.  v.  Fay  (37  Neb.  68), 

1344. 
Omoa  Coal  &  Iron  Co.  v.  Huntley  (2 

C.  P.  Div.  464),  1549. 
O'Neal  v.  Day  (53  Mo.  App.  139),  1588, 

1592. 
Oneida  Mfg.  Society  v.  Lawrence  (4 

Cow.  440),  1320,  1322. 
O'Neil  v.  Crain  (67  Mo.  250),  438. 
O'Neil  v.  Garrett  (6  Iowa.  480),  1579. 
O'Neil  v.  New  York  &  S.  P.  Min.  Co. 

(3  Nev.  141),  324 
O'Neil  v.  Vermont  (144  U.  S.  323),  740, 

794. 
O'Neil  v.  Walker  (45  La,  Ann.  609),  39. 
O'Neill  v.  Webb  (78  Mo.  App.  1),  1728. 
Oppenheim  v.  Russell  (3  Bos.  &  Pul. 

42),  1610. 
Orcutt  v.  Nelson  (1  Gray,  536),  757, 

1027. 
Oriental  Inland  Steam  Co.,  The,  v. 

Briggs  (4  D.  F.  &  J.  191),  .228. 


TABLE    OF    CASES    CITED. 


C11X 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Orman  v.  Hagar  (3  N.  Mex.  568),  317. 
Ormrod  v.  Huth  (14  M.  &  W.  651), 

1311. 
Ormsby  v.  Budd  (72  Iowa,  80),  1240, 

1245. 
Ormsby  v.  Dearborn  (116  Mass.  386), 

909. 
O'Rourke  v.  Hadcock  (114  N.  Y.  541), 

606,  610. 
O'Rourke  v.  O'Rourke  (43  Mich.  58), 

1059. 
O'Rourke  v.  Schultz  (23  Mont.  285), 

873. 
Orr  v.  Farmers'  Alliance  Co.  (97  Ga. 

241),  1762. 
Ortloff  v.  Klitzke  (43  Minn.  154),  362. 
Osborn  v.  Gantz  (60  N.  Y.  540),  546, 

1222,  1223. 
Osborn   v.  Nicholson  (80  U.  S.  654), 

1266,  1267. 
Osborn  v.  South  Shore  Lumber  Co. 

(91  Wis.  526),  635. 
Osborne   v.   Baker  (103  Mich.   247), 

1385,  1386,  1396. 
Osborne  v.  Carpenter  (37  Minn.  331), 

1397. 
Osborne  v.  Francis  (38  W.  Va.  312), 

665,  668. 
Osborne  v.  McQueen  (67  Wis.  392), 

1385,  1387,  1807. 
Osborne  v.  Van  Atten  (3  Wash.  Terr. 

53),  1181. 
Osborne   Co.  v.  Piano  Mfg.  Co.  (51 

Neb.  502),  599,  603. 
Osborne  &  Co.  v.  Bell  (62  Mich.  214), 

1664. 
Osburn  v.  Farr  (42  Mich.  134),  95. 
Osgood    v.    Bauder   (75   Iowa,   550), 

1043,  1148. 
Osgood  v.  Lewis  (2  H.  &  G.  495),  1235, 

1236,  1238,  1244,  1295,  1334,  1810. 
Oster  v.  Mickley  (35  Minn.  245),  1286. 
Osterhout  v.  Shoemaker  (3  Hill,  512), 

69. 
Oswald  v.   McGehee  (28  Miss.  340), 

1841. 


Oswego  Starch  Co.  v.  Lendrum  (57 

Iowa,  573),  892,  901,  924,  928. 
Otis  v.  Adams  (56  N.  J.  L.  38),  1148. 
Otis  v.  Cullom  (92  U.  S.  447),  1332. 
Otis  v.  Spencer  (102  111.  622),  955. 
Ott  v.  Sweatman  (166  Pa.  St.  217),  580, 

600. 
Ottawa  Bottle   Co.    v.   Gunther  (31 

Fed.  R.  209),  1314,  1344. 
Ottman  v.  Monk  (3  Sandf.  431),  121. 
Otto   v.   Haloff  (89  Tex.  384),  1423, 

1427. 
Out  water  v.  Dodge  (7  Cow.  85),  359, 

520,  523,  542. 
Overton  v.   Brown  (63  Mo.  App.  49), 

909. 
Overton  v.  Phelan  (2  Head,  445),  1344. 
Owen  v.  Long  (97  Wis.  78),  153,  603. 
Owen  v.  White  (5  Port.  435),  186. 
Owens  v.  Lewis  (46  lnd.  488),  336. 
Owens  v.  Sturges   (67  111.   366),   816, 

820,  1393,  1805. 
Owens  v.  Weed  man  (82  111.  409),  1485. 
Oxendale  v.  Wetherell  (9  B.  &  C.  386), 

242,  513,  1161. 
Oxford  Iron  Co.  v.  Spradley  (51  Ala. 

171),  1013. 
Pacific  Guano   Co.   v.  Dawkins  (57 

Ala.  115),  1030. 
Pacific  Guano  Co.  v.  Mullen  (66  Ala. 

582),  918,  1050. 
Pacific  Iron  Works  v.  Long  Island  R. 

Co.  (62  N.  Y.  272),  756,  1162. 
Pacific  Iron  Works  v.  Newhall  (34 

Conn.  67),  1344. 
Pacific  Lounge  Co.  v.  Rudebeck  (15 

Wash.  St,  336),  498,  499. 
Pacific  R.  R.  Co.  v.  Seely  (45  Mo.  212), 

142. 
Packard  v.  Dunsmore  (11  Cush.  282). 

380. 
Packard    v.   Getman  (6    Cow.    757), 

750. 
Paddock  v.  Davenport  (107  N.  C.  710 ', 

252. 
Paddock  v.  Fletcher  (42  Vt.  389),  878. 


clx 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  § 

Paddock  v.  Strobridge  (29  Vt.  470), 

869,  935. 
Paddou  v.  Taylor  (44  N.  Y.  371),  890. 
Padfield  v.  Green  (85  111.  529),  1455, 

1464. 
Paetz  v.  Stoppleman  (75  Wis.  510), 

937. 
Page  v.  Bent  (2  Mete.  371),  875. 
Page  v.  Carpenter  (10  N.  H.  77),  525. 
Page  v.  Edwards  (64  Vt.  124),  564, 624. 
Page  v.  Heineberg  (40  Vt,  81),  142. 
Page  v.  Parker  (43  N.  H.  363),  936, 

1843. 
Page  v.  Wells  (37  Mich.  45),  1843. 
Paige  v.  Barrett  (151  Mass.  67),  1089. 
Paine  v.  Devinel  (53  Mo.  52),  1424. 
Paine  v.  Fulton  (34  Wis.  83),  419. 
Paine  v.  Hall  Safe  Co.  (64  Miss.  175), 

599.  603. 
Paine  v.   Sherwood   (21   Minn.  225), 

1105,  1742,  1743. 
Paine  v.  Young  (56  Md.  314),  510. 
Palmateer  v.  Robinson  (60  N.  J.  L. 

433),  647. 
Palmer's  Appeal  (96  Pa.  St,  106),  912. 
Palmer  v.  Banfield  (86  Wis.  441),  665, 

669,  1384. 
Palmer  v.  Clark  (106  Mass.  373),  212. 
Palmer  v.  Hand  (13  Johns.  434),  542, 
.    543,1407. 
Palmer  v.  Hatch  (46  Mo.  585),  1281, 

1290. 
Palmer  v.  Howard  (72  Cal.  293),  564, 

576,  578,  599. 
Palmer  v.  Kelleher  (111  Mass.  320), 

1050. 
Palmer  v.  Roath  (86  Mich.  602),  1240, 

1255. 
Palmer  v.   Stephens  (1   Denio,  471), 

451. 
Palmer  v.  Vanderberg  (2  Wend.  193), 

1131. 
Pam  v.  Vilmar  (54  How.  Pr.  235),  50. 
Pancake  v.  Campbell  (44  W.  Va.  82), 

1089,  1706. 
Pancoast  v.  Gowen  (93  Pa.  St.  66),  197. 


§  1-797;  Vol.  H,  §§  798-1850. 


Pangborn  v.  Ruemenapp  (74  Mich. 

572),  915. 
Pangborn  v.  Westlake  (36  Iowa,  546), 

1045. 
Paola  Gas  Co.  v.  Paola  Glass  Co.  (56 

Kan.  614),  1779. 
Park  v.   Richardson    (81  Wis.   399), 

1395,  1807. 
Park  v.   Richardson   (91   Wis.   189), 

1817. 
Park  v.  Whitney  (148  Mass.  278),  251. 
Parke,  etc.  Co.  v.  Lumber  Co.  (101 

Cal.  37),  569. 
Parker,  Ex  parte  (11  Neb.  309),  356. 
Parker  v.  Baxter  (86  N.  Y.  586),  1482. 
Parker  v.  Byrnes  (1  Low.  539),  902, 

1586. 
Parker  v.  Conner  (93  N.  Y.  118),  953. 
Parker  v.  Davis  (8  Jones,  460),  69. 
Parker  v.  Pettit  (43  N.  J.  L.  512),  1097. 
Parker  v.  Macomber  (17    R.  I.  674), 

1106. 
Parker  v.  Marco  (76  Fed.  R.  510),  77. 
Parker  v.  Mitchell  (5  N.  H.  165),  386. 
Parker   v.   Moulton  (114   Mass.   99), 

938. 
Parker  v.   Mclver    (1    Desaus.  274), 

1578. 
Parker  v.  Palmer  (4  B.  &  Aid.  387), 

1320,  1392. 
Parker  v.  Russell  (133  Mass.  74),  1089, 

1090, 1092. 
Parker  v.  Schenck  (28  Barb.  38),  305. 
Parker  v.  Selden  (69  Conn.  544),  1134. 
Parker  v.  Wallis  (5  El.  &  Bl.  21),  360, 

373. 
Parkersburg  v.  Brown  (106  U.  S.  487), 

999. 
Parkhurst  v.  Van  Cortland  (14  Johns. 

15),  426. 
Parkinson  v.  Lee  (2  East,  314),  1311, 

1316,  1329. 
Parkinson  v.  State  (14  Md.  184),  12. 
Parks  v.  Hall  (2  Pick.  211),  1515. 
Parks  v.  Lancaster  (Tex.  Civ.  App., 
38  S.  W.  R.  262),  914. 


1ABLE    OF    CASES    CITED. 


clxi 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Parks  v.  Morris  Ax  Co.  (54  N.  Y.  586), 

1222,  1272,  1335,  1393,  1395. 
Parks  v.  O'Connor  (70  Tex.  377),  1251, 

1391. 
Parks   v.  Tool  Co.   (54    N.  Y.   586), 

1395. 
Parlin.  etc.  Co.  v.  Harrell  (8  Tex.  Civ. 

App.  368),  593,  603,  619,  632. 
Parmlee  v.  Catherwood  (36  Mo.  479), 

599. 
Parnther  v.  Gaitskell  (13  East,  432), 

14. V.i. 
Parry  v.  Libbey  (166  Mass.  112),  1197. 
Parry  Mfg.  Co.  v.  Tobin  (106  Wis.  286), 

1805,  1844. 
Parsons  v.  Dickinson  (11  Pick.  352), 

483. 
Parsons  v.  Keys  (43  Tex.  557),  123. 
Parsons  v.  Loucks  (48  N.  Y.  17),  305. 
Parton  v.  Crofts  (1G  C.  B.,  N.  S.,  lis 

468. 
Parvelski  v.  Hargreaves  (47  X  J.  L. 

334),  293,  316. 
Pasch  Case  (17  Edw.  IV.  2),  238. 
Pash  v.  "Weston  (52  Iowa.  675),  599, 

603. 
Pashl>y  v.   Mandigo  (42   Mich.    172), 

971.. 
Pasley  v.  Freeman  (3  T.  R,  51),  876, 

1223, 1242. 
Passaic  Mfg.  Co.  v.  Hoffman  (3  Daly, 

495),  305. 
Passinger  v.  Thorburn  (34  N.  Y.  G34), 

1817,  1823,  1827. 
Patee  v.  Pelton  (48  Vt.  182),  1306. 
Patent  Title  Co.  v.  Stratton  (89  Fed. 

R.  174),  942. 
Patrick  v.   Bowman  (149  U.  S.  411), 

247. 
Patrick  v.  Colorado  Smelting  Co.  (20 

Colo.  268),  52. 
Pattee  v.  Greely  (13  Mete.  284\  1057. 
Patten's  Appeal  (45  Pa.  St.  151),  1628. 
Patten  v.  Casey  (57  Mo.  118).  957. 
Patten  v.  Hood  (40  Me.  457),  1423. 
Patterson  v.  Judd  (27  Mo.  563),  1168. 


Patterson  v.  Lippincott  (47  N.  J.  L. 

457),  97. 
Patterson  v.  Taylor  (15  Fla.  340),  8. 
Pattison's  Appeal  (61  Pa.   St.   294), 

336. 
Pattison  v.  Culton  (33  Ind.  240),  1562, 

1563,  1614,  1615. 
Patton  v.  Arney  (95  Iowa,  664),  223. 
Paul  v.  Baugh  (85  Va.  955).  952. 
Paul  v.  Grimm  (165  Pa.  St.  139),  1455. 
Paul    v.    Hard  wick    (Oliphant,    81), 

1270. 
Paul  v.  Kenosha  (22  Wis.  256),  838, 

1849. 
Paul  v.  Reed  (52  N.  H.  136),  499,  541, 

543,  551,  554. 
Paul  v.  Smith  (41  Mo.  App.  275),  132. 
Paulson  v.  Hall  (39  Kan.  365),  1302. 
Payne  v.  Rodden  (4  Bibb,  304),  1302, 

1795. 
Payne  v.  Stanton  (59  Mo.  158).  973. 
Payne  v.  Thompson  (44  Ohio  St.  192), 

138. 
Pawson  v.  Watson  (Cowp.  785),  1223. 
Peak  v.  Frost  (1G2  Mass.  298),  1843. 
Peabody  v.  Carrol  (9  Mart.  295),  964. 
Peabody  v.  Maguire  (79  Me.  572),  54G, 

549,  551,  552,  554,  624. 
Peabody  v.  Speyers  (5G  N.  Y.  230),  331, 

432. 
Peace  River  Phosphate  Co.  v.  Grafflin 

(58  Fed.  R.  550),  1139. 
Pearce  v.  Blackwell  (12  Ired.  49),  933. 
Pearce  v.  Brooks  (L.  R.  1  Exch.  213), 

1012,  1015,  1021. 
Pearce  v.  Foot  (113  111.  228),  1039. 
Pearce  v.  Foote  (95  I1L  99),  1034. 
Pearl  v.  McDowell  (3  J.  J.  Marsh.  658), 

69,  77,  84 
Pearne  v.  Lisle  (Ambl.  77),  1719. 
Pearse  v.  Pettis  (47  Barb.  276),  915, 917. 
Pearson,  Ex  parte  (L.  R.  3  Ch.  App. 

442),  1181. 
Pearson  v.  Cox  (71  Tex.  246),  72,  77. 
Pearson  v.  Dawson  (El.,  Bl.  &  El.  448), 

1503. 


clxii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Pearson  v.  Quist  (79  Iowa,  54),  950. 
Pearson  v.  Mason  (120  Mass.  53),  1695. 
Pearson  v.  State  (66  Miss.  510),  1009. 
Pearson   v.   Thomason  (15  Ala.  700), 

1420. 
Pease  v.  Cole  (53  Conn.  53),  143. 
Pease  v.  Gloahec  (L.  R.  1  Pr.  Coun. 

219),  148. 
Pease  v.  Norton  (6  Me.  229),  1136. 
Pease  v.  Sabin  (38  Vt.  432),  1344, 1346, 

1352. 
Peck  v.  Brewer  (48  111.  54),  1393. 
Peck  v.  Freese  (101  Mich.  321),  254. 
Peck  v.  Jenison  (99  Mich.  326),  936. 
Peck  v.  Vandemark  (99  N.  Y.  29),  426. 
Peden  v.  Moore  (1  Stew.  &  Port.  71), 

940.  1844. 
Peek  v.  Deny  (L.  R.  37  Ch.  Div.  541), 

876. 
Peek  v.  Gurney  (L.  R.  13  Eq.  Cas.  79), 

878. 
Peek  v.  Gurney  (L.  R.  6  H.  L.  403),  868, 

869,  876. 
Peek  v.  Heim  (127  Pa.  St,  500),  580. 
Peel  v.  Shepherd  (58  Ga.  365),  1451. 
Peeples  v.  Stalla  (57  Ala.  53),  692. 
Pelletreau  v.  United  States  Electric 

Light  Co.  (34  N.  Y.  Supp.  125).  305. 
Peltier  v.  Collins  (3  Wend.  459),  441, 

469. 
Pembroke  Iron  Co.  v.  Parsons  (5  Gra\-, 

589),  1169. 
Pence  v.  Langdon  (99  U.  S.  578),  908. 
Pendergast  v.  Reed  (29  Md.  398),  937. 
Peninsular  Stove  Co.  v.  Ellis  (20  Ind. 

App.  491),  923,  924. 
Penland  v.  Cathey  (110  Ga.  431),  603. 
Penley  v.  Bessey  (87  Me.  530),  488, 

485,  492. 
Penn  v.  Bornman  (102  111.  523),  1046. 
Penn  v.  Smith  (93  Ala.  476),  1643. 
Penn  v.  Smith    (98    Ala.    560),    1634, 

1640. 
Penn  v.  Smith   (104  Ala.    445),  1760, 

1763. 
Pennell  v.  McAfferty  (84  111.  364),  1380. 


Penniman  v.  Hartshorn  (13  Mass.  87), 

41,  264,  456. 
Pen  nock  v.  Coe  (23  How.  117  .  202. 
Pennock   v.   McCormick   (120   Mass. 

275),  40. 
Pennock   v.  Steygles    (54    Yt.    226), 

1237,  1395. 
Pennsylvania   Co.   v.  Franklin  Fire 

Ins.  Co.  (181  Pa.  St.  40),  1727. 
Pennsylvania   Co.  v.  Holderman  (69 

Ind.'lS),  1181. 
Pennsylvania  R.  Co.  v.  American  Oil 

Works  (126  Pa.  St.  485),  1610. 
Pennsylvania  R.  Co.  v.  Titusville,  etc. 

Co.  (71  Pa.  St.  350),  1775. 
Pennsylvania  Ry.  Co.  v.  Stern  (119 

Pa.  St.  24),  774,  782. 
People  v.  Adelphi  Club  (149  N.  Y.  5), 

55. 
People   v.  Andrews  (115  N.  Y.  427), 

55. 
People  v.  Cannon  (139  N.  Y.  32),  676. 
People  v.  Commissioners    (58   N.   Y. 

242),  755. 
People  v.  Healy  (128  111.  9),  893,  1666. 
People  v.  Refining  Co.  (54  Hun,  354), 
•  208. 
People  v.  Shriver  (31  Albany  L.  Jour. 

163),  740,  794. 
People  v.  Soule  (74  Mich.  250),  55. 
People  v.  Tweed  (63  N.  Y.  194),  1502. 
People  v.  Walker  (17  N.  Y.  502),  1136. 
People's  Furn.  &  Carp.  Co.  v.  Crosby 

(57  Neb.  282),  610. 
People's  Mut.   Ace.   Ass'n  v.  Smith 

(126  Pa.  St.  317),  963. 
Peoria  Bank  v.  Railroad  Co.  (58  N.  H. 

203),  774. 
Peoria  Grape  Sngar  Co.  v.  Babcock 

(67  Fed.  R.  892),  434,  437,  438. 
Peoria  Grape  Sugar  Co.  v.  Turney 

(175  111.  631),  1337. 
Peoria  Mfg.  Co.  v.  Lyons  (153  111.  437), 

49. 
Peoria  &  Pekin  Un.  Ry.  Co.  v.  Buck- 
ley (114  111.  337),  545,  555. 


TABLE    OF    CASES    CITED. 


clxiii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Perdue  v.  Harwell  (80  Ga.  150),  1272, 

1273. 
Perkins  v.   Best  (91  Wis.  1G8),  603, 

601. 
Perkins  v.  Brown  (115  Mich.  41),  839, 

1846. 
Perkins  v.  Douglas  (20  Me.  317),  678. 
Perkina  v.  Grobben  (116  Mich.  172), 

620. 
Perkins  v.  Hadsell  (50  111.  216),  449. 
Perkins  v.  Mettler  (126  Cal.  100),  566, 

597. 
Perkins  v.  McCullough  (31  Oreg.  69), 

159. 
Perkins  v.  Whelan  (116  Mass.  543), 

1795. 
Perley  v.  Balch  (23  Pick.  283),  914, 

916,  941,  1302. 
Perlman  v.  Sartorious  (162  Pa.  St. 

320),  1124,  1181. 
Perrin  v.  Wilson  (10  Mo.  451),  129. 
Perrine  v.   Barnard  (142  Ind.  442), 

1485. 
Perrine  v.  Cooley  (39  N.  J.  L.  449), 

1255. 
Perrine  v.  Serrell  (30  N.  J.  L.  454), 

1223,  1807. 
Perry  v.  Iron  Co.  (16  R.  I.  318),  1158. 
Perry  v.  Johnston  (59  Ala,  648),  932. 
Perry  v.  Mt.  Hope  Iron  Co.  (15  R.  I. 

380),  248,  249. 
Perry  v.   Pettingill  (33  N.  H.  433), 

636. 
Perry  v.  Smith  (22  Vt.  301),  1440, 1441, 

1442. 
Perry  v.  Young  (105  N.  C.  463),  599, 

603,  643. 
Perryman  v.  Wolffe  (93  Ala,   290), 

1031. 
Persse,  In  re  (3  Molloy,  94),  84. 
Peters  v.  Fleming  (6  M  &  W.  42),  130. 

132. 
Peters  v.  Grim  (149  Pa.  St.  163),  99, 

1032.  1034. 
Peters  Box  Co.  v.  Lesh  (119  Ind.  98). 
149,  887. 


Petersen  v.  Door,  Sash  &  Lumber  Co. 

(51  Mich.  86),  839, 1850. 
Peterson    v.    Hornblower    (33    Cal. 

276),  8. 
Peterson  v.  Tufts  (34  Neb.  8),  598, 

603. 
Peterson  v.  Walter  A.  Wood  Co.  (97 

Iowa,  148),  1385. 
Petrie  v.  Hannay  (3  T.  R.  418),  1012, 

1015. 
Pettengill  v.  Merrill  (47  Me.  109),  1665. 
Pettyplace  v.  Groton  Mfg.  Co.  (103 

Mich.  155),  599,  624. 
Phelps  v.  Curts  (80  111.  109),  952,  978. 
Phelps  v.  Holderness  (56  Ark.  300), 

1031. 
Phelps  v.  Hubbard  (51  Vt.  489),  1121, 

1128,  1187,  1412,  1643. 
Phelps  v.  Stillings  (60  N.  H.  505),  438. 
Phelps  v.  Whitaker  (37  Mich.  72),  255, 

1240,  1055. 
Phelps  v.  Worcester  (11  N.  H.  51),  132. 
Phelps-Bigelow    Windmill     Co.     v. 

Piercy  (41  Kan.  763),  1254,  1384. 
Phenix  v.  Gardner  (13  Minn.  432 ',  40. 
Phenix  Ins.  Co.  v.  Schultz  (42  U.  S. 

App.  483),  228. 
Phifer  v.  Erwin  (100  N.  C.  59),  210, 

498,  960. 
Philadelphia  Whiting  Co.  v.  Detroit 

White  Lead  Works  (58  Mich.  29), 

1378. 
Philadelphia    Iron  Co.   v.   Hoffman 

( —  pa.  St.  — ),  1236. 
Philadelphia,  etc.  R.  Co.  v.  Howard 

(54  U.  S.  307),  1704,  1709. 
Philadelphia,  etc.  R.  Co.  v.  Wireman 

(88  Pa,  St.  264),  736. 
Philbrick  v.  O'Connor  (15  Oreg.  15), 

954,  970,  978. 
Philbrook  v.  Eaton  (134  Mass.  398), 

40,  1786. 
Philips  v.  Green  (3  A.  K.  Marsh.  7),  95. 
Phillips  v.  Adair  (59  Ga.  370),  953. 
Phillips  v.  Bistolli  (2  B.  &  Cr.  511), 

278,  358,  376. 


clxiv 


TABLE    OF    CASES    CITED. 


Keferenees  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  79S-1850. 


Phillips  v.  Green  (5  T.  B.  Mou.  344), 

109. 
Phillips  v.  Hunuewell  (4  Greenl.  376), 

41. 
Phillips  v.  Jones  (12  Neb.  213),  875. 
Phillips  v.  Lloyd  (18  R.  I.  99),  132. 
Phillips  v.  Moor  (71  Me.  78),  231,  260, 

492,  493,  498,  536,  542. 
Phillips   v.  Ocmulgee  Mills  (55  Ga. 

633),  361,  711. 
Phillips  v.  Reitz  (16  Kan.  396),  960. 
Phillips  v.  Sanchez  (35  Fla.  187),  183, 

185. 
Philpot  v.  Sandwich  Mfg.  Co.  (18  Neb. 

54),  121. 
Phillpotts  v.  Evans  (5  M.  &  W.  475), 

1088,  1090. 
Phinney   v.    Baldwin    (16    111.    108), 

1043. 
Phipps  v.  Buckman  (30  Pa.  St.  401), 

879. 
Phipps   v.   McFarlane  (3  Minn.  61), 

319. 
Phoenix  Iron  Works  Co.  v.  McEvony 

(47  Neb.  228),  918,  924 
Phoenix  Lock   Works  v.  Hardware 

Co.  (9  Houst.  232),  1124,  1181. 
Phoenix  Milling  Co.  v.  Anderson  (78 

111.  App.  253),  908),  925. 
Piazzek  v.  White  (23  Kan.  621),  711. 
Pickard  v.  McCorrnick  (11  Mich.  68), 

13,  936. 
Pickard  v.  Sears  (6  Adol.  &  El.  469), 

170. 
Pickering  v.  Bardwell  (21  Wis.  562), 

1642. 
Pickering  v.  Busk  (15  East,  38),  158, 

161,  1446. 
Pickering  v.  Cease  (79  111.  328),  1034. 
Pickering  v.  Dowson  (4  Taunt.  779), 

869. 
Pickert  v.  Marston  (68  Wis.  465),  1281, 

1282. 
Pickett  v.  Bullock  (52  N.   H.   354), 

1477. 
Pickett  v.  Cloud  (1  Bailey,  362),  543. 


Piedmont    Club  v.    Commonwealth 

(87  Va.  541), . 

Pierce  v.  Bourton  (17  N.  Y.  Wkly. 

Dig.  444),  305. 
Pierce  v.  £hipman  (8  Vt.  334),  1193. 
Pierce  v.  Cooley  (56  Mich.  552),  669. 
Pierce  v.  Drake  (15  Johns.  475),  913. 
Pierce  v.  Emery  (32  N.  H.  484),  141, 

199. 
Pierce  v.  George  (108  Mass.  78),  646. 
Pierce  v.  Schenck  (3  Hill,  28),  21,  23. 
Pierce  v.  Scott  (37  Ark.  308),  692. 
Pierce  v.  Tenn.  Coal,  I.  &  R.  Co.  (173 

U.  S.  1),  1090. 
Pierce  v.  Van  Dyke  (6  Hill,  613),  928. 
Pierrepont  v.  Barnard  (2  Seld.  279), 

336. 
Pierson   v.  Crooks  (115  N.   Y.   539), 

1375,   1377,   1380,  1391,  1392,   1395, 

1398. 
Pierson  v.  Spaulding  (67  Mich.  640), 

702. 
Pierstoff  v.  Jorges  (86  Wis.  128),  970. 
Pike  v.  Baker  (53  111.  163),  1181. 
Pike  v.  Balch  (38  Me.  302),  327,  461. 
Pike  v.  Bright  (29  Ala.  336),  17. 
Pike  v.  Fay  (101  Mass.  134),  1320. 
Pike  v.  Fitzgibbon  (17  Ch.  Div.  454), 

135. 
Pike  v.  King  (16  Iowa,  49),  1054. 
Pike  v.  Miles  (23  Wis.  164),  972. 
Pike  v.  Vaughn  (39  Wis.   499),   520, 

523,  527. 

Pike  v.  Wieting  (49  Barb.  314),  902. 
Pilgreen  v.  State  (71  Ala.  368),  740, 793, 

1029. 
Pillen  v.  Erickson  ( Mich.  — ), 

1057. 
Pineville  Lumber  Co.  v.  Thompson 

(46  Minn.  502),  166. 
Pinkham  v.  Appleton  (82  Me.  574), 

524,  534,  543,  549. 

Pinkham  v.  Mattox  (53  N  H.  600), 

360,  362,  373,  394,  397. 
Pinney  v.  Andrus  (41  Vt.  631),  1270, 

1273. 


TABLE   OF    CASES   CITED. 


clxv 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol,  II,  §§  798-1850. 


Pinney  v.  Gleason  (5  Wend.  393),  1440. 

1448. 
Pinney  v.  Railroad  Co.  (19  Minn.  251), 

1132. 
Pipkin  v.  Williams  (57  Ark.  242),  950. 
Pitcher  v.  Lowe  (95  Ga.  423),  428. 
Pitkin  v.  Harris  (69  Mich.  133),  1455. 
Pitkin  v.  Noyes  (48  N.  H.  294),  312, 

345. 
Pitsinowski   v.  Beardsley  (37  Iowa, 

9),  1286,  1386. 
Pitt  v.  Acosta  (18  Fla.  270),  1428. 
Pitt  v.  Smith  (3  Camp.  33),  87. 
Pitts  v.  Beckett  (13  M.  &  W.  743), 

448. 
Pitts  Mfg.  Co.  v.  Spitznogle  (54  Iowa, 

36),  1384. 
Pittsburgh  Coal  Co.  v.  Foster  (59  Pa. 

St.  365),  1831. 
Pittsburg,   etc.    R.    Co.  v.  Heck  (50 

Ind.  303),  1633,  1690. 
Pittsburgh    Locomotive    Works    v. 

Keokuk  Bank  (19  Fed.  Cas.  785), 

550. 
Pixley  v.  Boynton  (79  111.  351),  1032, 

1031. 
Plaisted  v.  Palmer  (63  Me.  576),  1056, 

1057. 
Planche  v.  Colburn  (8  Bing.  14),  1097. 
Piano  Mfg.  Co.  v.  Ellis  (68  Mich.  101), 

663,  680,  814. 
Piatt  v.   Brand  (26  Mich.  173),  1089, 

1090, 1092. 
Piatt  v.   Broderick  (70    Mich.   577), 

668. 
Piatt  v.  Fire  Extinguisher  Mfg.  Co. 

(59  Fed.  R  897),  1080. 
Pleasants  v.  Pendleton  (6  Rand.  473), 

702,  711,  714. 
Plevins  v.  Downing  (1  C.  P.  Div.  220), 

1152,  1153. 
Plumb  v.  Campbell  (129  111.  101).  1633. 
Pluramer  v.  Shirley  (16  Ind.  380),  583. 
Poconoket,  The  (67  Fed.  R.  262),  755. 
Poindexter  v.  McCannon  (1  Dev.  Eq. 

373),  692. 

1 


Poland  v.  Brownell  (131  Mass.  138), 

936,  937,  1242. 
Poland  v.  Miller  (95  Ind.  387),  1344 
Polhemus   v.    Heiman  (45  Cal.  573), 

1161,  1168,  1235,  1335,  1393,  1844. 
Polhill  v.  Walter  (3  B.  &  A.  114),  856, 

876. 
Pollard  v.  Clayton  (1  K.  &  J.  472), 

1722,  1726. 
Pollard  v.  Farwell  (48  Mo.  App.  42), 

964. 
Pollen  v.  Le  Roy  (30  N.  Y.  549),  1624, 

16'29,  1637,  1641,  1643. 
Pollock  v.  Fisher  (6  N.  B.  515),  714. 
Pollock  v.  Jones  (96  Ala.  492),  955. 
Pollock  v.  Meyer  (96  Ala.  172),  955. 
Pollock  v.  Smith  (49  Neb.  864),  908. 
Pontifex  v.  Williamson  (1  C.  B.  75), 

1106. 
Poole  v.  Houston  &  T.  C.  Ry.  Co.  (58 

Tex.  134),  1557,  1609. 
Poor  v.  Oakman  (104  Mass.  309),  336. 
Poor  v.  Wood  burn  (25  Vt.  234),  919, 

924. 
Poorman  v.  Whitman  (49  Kan.  697), 

601. 
Poorman  v.  Woodward  (21  How.  266), 

1455. 
Pope  v.  Allis  (115  U.  S.  363),  810,  831, 

839,  1155,  1208,  1846,  1850. 
Pope  v.  Hanke  (155  111.  617),  1043. 
Pope  v.  Linn  (50  Me.  83),  1057. 
Pope  v.  Porter  (102  N.  Y.  366),  1144, 

1146. 
Pope  v.   Terre  Haute  Car  Co.  (107 

N.  Y.  61),  1129. 
Pope  v.  Wilson  (7  Ala.  690),  974. 
Pope  Iron  &  Metal  Co.  v.  Best  (14  Mo. 

App.  502),  667. 
Poplett  v.  Stockdale  (2  Car.  &  P.  198), 

1007. 
Pordage  v.  Cole  (1  Saund.  319/i),  404. 
Porell  v.  Cavanaugh  (69  N.  H.  364), 

148. 
Port  Carbon  Co.  v.  Groves  (68  Pa.  St. 

149),  1314,  1344,  1347,  1349. 


clxvi 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Porter  v.  Bright  (82  Pa.  St.  441),  1309, 

13:32. 
Porter  v.  Bucher  (98  Cal.  454),  967. 
Porter  v.  Curry  (50  111.  319),  145. 
Porter  v.  Gamba  (43  Cal.  105),  138. 
Porter  v.  Leyhe  (07   Mo.    App.    540), 

921. 
Porter  v.  Parks  (49  N.  Y.  564),  159. 
Porter  v.  Pool  (62  Ga.  238),  1248, 1817. 
Porter  v.  Powell  (79  Iowa,  151),  186. 
Porter  v.  Talcott  (1  Cow.  359),  16. 
Portland  Bank  v.  Stacey  (4  Mass.  661), 

987,  988,  1201. 
Portland   Bank   v.   Stubbs  (6  Mass. 

422),  987,  1201. 
Posey  v.  Scales  (55  Ind.  282),  1127, 

1130. 
Poska  v.  Stearns  (56  Neb.  541),  897, 

898. 
Post  v.  Stiger  (29  N.  J.  Eq.  554),  971. 
Potsdamer  v.  Kruse  (57  Minn.  193), 

1398. 
Potter  v.  Cowand  (Meigs,  22),  483. 
Potter  v.  Duffield  (L.  R.  18  Eq.  4),  439. 
Potter  v.  Everett  (40  Mo.  App.  152), 

336. 
Potter  v.  Green  (6  Allen.  442),  1419. 
Potter  v.  Lee  (94  Mich.  140),  1382. 
Potter  v.  McDowell  (31  Mo.  62),  957. 
Potter  v.  Necedah  Lbr.  Co.  (105  Wis. 

25),  1842,  1843. 
Potter  v.  Potter  (65  111.  App.  74).  937. 
Potter  v.  Sanders  (6  Hare,  1),  247. 
Potter  v.  Springfield  Milling  Co.  (75 

Miss.  532),  175. 
Potter  v.  Titcomb  (22  Me.  300),  914. 
Potts  v.  N.  Y.  etc.  R.  Co.  (131  Mass. 

455),  1610. 
Potts  v.  Whitehead  (23  N.  J.  Eq.  514), 

228,  244,  247. 
Powder  Co.  v.  Burkhardt  (97  U.  S. 

110),  20,  21. 
Powder  Live  Stock  Co.  v.  Lamb  (38 

Neb.  339),  356. 
Powell  v.  Bradlee  (9  Gill  &  J.  220), 
1437. 


Powell  v.  Chitteck   (89   Iowa,  513), 

1235. 
Powell  v.  Divett  (15  East,  29),  472. 
Powell  v.  Henry  ^27  Ala.  612),  175, 

1455. 
Powell  v.  Horton  (2  Bing.  N.  C.  668), 

1251,  1321. 
Powell  v.  Inman  (8  Jones  L.  436),  947. 
Powell  v.  Jessop  (18  C.  B.  336),  329. 
Powell  v.  Kelly  (82  Ga.  1).  955. 
Powell  v.  McAsham  (28  Mo.  70),  333. 
Powell  v.  Preston  (1  Hun,  513),  597. 
Powell  v.  Stickney  (88  Ind.  310),  960. 
Powell  v.  Wallace  (44  Kan.  656),  601. 
Power  v.  Barnham  (4  Ad.  &  El.  473), 

1240,  1242. 
Powers  v.  Benedict  (88  N.  Y.  605),  909. 
Powers  v.  Dennison  (30  Vt.  752).  646. 
Powers  v.  Harris  (68  Ala.  409),  170. 
Prairie  Farmer  Co.  v.  Taylor  (69  111. 

440),  682,  1393. 
Pratt  v.  Boody  (55  N.  J.  Eq.  175),  1032. 
Pratt  v.  Bryant  (20  Vt.  333),  642. 
Pratt  v.  Burhans  (84  Mich.  487),  601. 
Pratt  v.  Chase  (40  Me.  269),  397. 
Pratt  v.  Collins  (20  Hun,  126),  451. 
Pratt  v.  Maynard  (116  Mass.  388),  1188. 
Pratt  v.  Miller  (109  Mo.  78),  320. 
Pratt  v.  Parkman  (24  Pick.  42),  1201. 

Pratt  v.  Paules  ( Pa.  St. ),  1236. 

Pratt  v.  Peck  (70  Wis.  620),  1380. 
Pratt  v.  Philbrook  (41  Me.  132),  879, 

908. 
Pray  v.  Burbank  (10  N.  H.  377),  1045. 
Pray  v.  Mitchell  (60  Me.  430),  331. 
Pregnall  v.  Miller  (21  S.  C.  385),  965. 
Prentice  Co.  v.  Page  (164  Mass.  276), 

169. 
Prentiss  Tool   Co.  v.  Schirmer  (136 

N.  Y.  305),  624. 
Prescott  v.  Locke  (51  N.  H.  94),  313, 

324,  499. 
Preston  v.  Whitney  (23  Mich.  260), 

629. 
Preston  v.  Witherspoon  (109  Ind.  857), 

25, 165. 


TABLE    OF    CASES    CITED. 


clxvii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Prewitt  v.  Trimble  (92  Ky.  176>,  864 
Prewitt  v.  Wilson  (103   U.  S.  22),  955. 
Pribble  v.  Kent  (10  Ind.  325),  25. 
Price  v.  Boston,  etc.  R.  Co.  (101  Mass- 

542).  1181. 
Price  v.  Furman  (27  Vt.  2G8),  107, 109, 

118,  119. 
Price  v.  Justrobe  (Harper,  111),  1440. 
Price  v.  Malott  (85  Ind.  266),  045. 
Price  v.  Railroad  Co.  (50  N.  Y.  213), 

887. 
Price  v.  Saunders  (60  Ind.  310),  130, 

132. 
Price  v.  Wisconsin  M.  &  F.  Ins.  Co. 

(43  Wis.  267),  169. 
Pricbett  v.  Cook  (62  Pa.  St.  193),  23. 
'  Priest  v.  White  (89  Mo.  609),  879. 
Prime  v.  Cobb  (63  Me.  200),  628. 
Prince  v.  Boston  &   L.  R.  Co.   (101 

Mass.  542),  736. 
Prince   v.  Case   (10   Conn.  375),  335, 

646. 
Pritchard  v.  Smith  (77  Ga.  463),  1423. 
Pritchett  v.  Jones  (4  Rawle,  260),  508. 
Proctor  v.  Jones  (2  C.  &  P.  532),  386, 

1  I-.-.. 
Proctor  v.  McCoid  (60  Iowa,  153),  879. 
Proctor  v.  Sears  (4  Allen,  95),  105,  121. 
Proctor  v.  Spratley  (78  Va.  254),  875, 

1320,  1321. 
Proctor  v.  Tilton  (65  N.  H.  3),  628. 
Prosser  v.  Jones  (41  Iowa,  674),  1792. 
Provencher  v.  Brooks  (64  N.  H.  479), 

200. 
Providence  Coal  Co.  v.  Coxe  (19  R.  I. 

380),  1148. 
Public  Parks  Amusement  Co.  v.  Era- 

bree-McLean  Carriage  Co.  (64  Ark. 

29),  649. 
Puckett  v.  Reed  (31  Ark.  131),  1197. 
Puffer  v.  Lucas  (112  N.  C.  377),  569. 
Puset  Sound  Mach.  Co.  v.  Rigby  (13 

Wash.  264),  310. 
Pugh  v.  Chesseldine  (11  Ohio,  109), 

461. 
Pugh  v.  Moore  (44  La.  Ann.  209),  1332. 


Pullman   Palace  Car  Co.  v.  Metro- 
politan Street  Ry.  Co.  (157  U.  S.  94), 

1384. 
Pulse  v.  Miller  (81  Ind.  190),  437. 
Pulsford  v.  Richards  (17  Beav.  87), 

1223. 
Purcell  v.  Mather  (35  Ala.  570),  199, 

200. 
Purdy  v.  Huntington  (42  N.  Y.  334), 

1453. 
Purner  v.  Piercy  (40  Md.  212),  337, 338, 

344. 
Pusey  v.  Pusey  (1  Vera.  273),  1719. 
Pust  v.  Dowie  (5  B.  &  S.  20),  1075. 
Putnam  v.  Dutch  (8  Mass.  287),  988, 

1201. 
Putnam  v.  French  (53  Vt.  402),  1449, 

1450. 
Putnam  v.  Glidden  (159  Mass.  47), 

1475,  1671,  1675,  1682. 
Putnam  v.  Lamphier  (36  Cal.  151),  599. 
Putnam  v.  Tillotson  (13  Mete.   517), 

757.  1182. 
Putney  v.  Day  (6  N.  H.  430),  336. 
Pym  v.  Campbell  (6  E.  &  B.  370),  448. 
Pyne  v.  Wood  (145  Mass.  558),  119, 132. 
Quarles  v.  State  (55  Ark.  10),  1052. 
Quick  v.  Wheeler  (78  N.  Y.  300),  226, 

253. 
Quigley  v.   Mexico  Southern   Bank 

(80  Mo.  289),  1462. 
Quimby  v.  Lowell  (89  Me.  547),  612, 

824.  * 
Quincy  v.  Tilton  (5  GreenL  277),  804, 

809,  964. 
Quinn  v.  Davis  (78  Pa.  St.  15),  154. 
Quinn  v.  Parke,  etc.  Co.  (5  Wash.  276), 

569,  610. 
Quintard  v.  Bacon  (99  Mass.  185),  365. 
Raby  v.  Frank  (12  Tex;  Civ.  App.),  12, 

905. 
Raeside  v.  Hamm  (87  Iowa,  720),  935. 
Raffles  v.  Wichelhaus  (2  H.  &  C.  906', 

272.  845,  848. 
Ragland  v.  Wood  (71  Ala.  145),  1124, 

1125. 


clxviii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Rahn  v.  Deig  (121  Ind.  283),  1736, 1762. 
Rahter  v.  Bank  (92  Pa.  St.  393),  1051. 
Rail  v.  Little  Falls  Lumber  Co.  (47 

Minn.  422),  485,  488,  493,  502,  508, 

542,  1177. 
Railroad  Co.  v.  Barrett  (36  Ohio  St. 

448),  750. 
Railroad  Co.  v.  Burr  (51  Ga.  553),  714. 
Railroad  Co.  v.  Closser  (126  Ind.  348), 

208. 
Railroad  Co.  v.  Freeman  (61  Mo.  80), 

336. 
Rainwater  v.  Durham  (2  N.  &  McC. 

524),  132. 
Ralph  v.  Fon  Dersmith  (3  Pa.  Super. 

Ct,  618),  897. 
Ralston  v.  Boady  (20  Ga,  449),  1013. 
Ramming  v.  Caldwell  (43  I1L  App. 

175),  1348. 
Ramsey  v.  Tully  (12  111.  App.  463), 

1071,  1079,  1389. 
Ramsgate  Hotel  Co.   v.   Montefiore 

(L.  R.  1  Exch.  109),  260. 
Rand  v.  Mather  (11  Cush.  1),  1003. 
Randall  v.  Kehlor  (60  Me.  37),  1281. 
Randall  v.  Newson  (2  Q.  B.  Div.  102), 

1344,  1346,  1823. 
Randall  v.  Raper  (1  EL,  Bl.  &  El.  84), 

1834. 
Randall  v.  Sweet  (1  Den.  460),  112, 132. 
Randall  v.  Thornton  (43  Me.  226),  1235. 
Randle  v.  Stone  (77  Ga.  501),  634. 
Randolph  Iron  Co.  v.  Elliott  (34  N.  J. 

L.  1S4),  267. 
Ranney  v.  Higby  (4  Wis.  154),  739. 
Raphael  v.  Burt  (Cab.  &  El.  325),  1301, 

1303. 
Raphael  v.  Reinstein  (154  Mass.  178), 

909. 
Rappleye  v.  International  Bank  (93 

111.  396),  946. 
Rasin  v.  Conley  (58  Md.  59),  1314. 
Rauber  v.  Sundback  (1  S.  Dak.  268), 

58. 
Rawles  v.  Deshler  (3  Keyes,  572),  891. 


Rawley,  The  M.  K.  (2  Low.  Dec.  447). 

750. 
Rawlings  v.  Bean  (80  Mo.  614),  878. 
Rawlings  v.  Hunt  (90  N.  C.  270),  202. 
Rawson  v.  Johnson  (1  East,  203',  1188. 
Rawson  Mfg.  Co.  v.  Richards  (69  Wis. 

643),  603. 
Ray  v.  Light  (34  Ark.  421),  273. 
Ray  v.  Thompson  (12  Cush.  281),  683. 
Raymond  v.  Leavitt  (46  Mich.  447), 

208. 
Rayner  v.  Linthorne  (2  C.  &  P.  124), 

461. 
Rea  v.  Durkee  (25  111.  414),  184. 
Read  v.  Cumberland  (93  Tenn.  482), 

175. 
Read  v.  Hutchinson  (3  Camp.  351), 

912, 1411. 
Read  v.  Livingston  (3  Johns.  Ch.  481), 

975. 
Read  v.  Mosby  (87  Tenn.  759),  200. 
Read  v.  Staton  (3  Hayw.  159),  1796. 
Read  v.  Sturdevant  (40  Vt.  521),  1442. 
Read  v.  Taft  (3  R.  I.  175),  1013. 
Reade  v.  Livingston  (3  Johns.  Ch. 

481),  972,  974 
Reade  v.   Livingston  (3  Johns.  Ch. 

501),  973. 
Readhead  v.  Railway  Co.  (L.  R.  4  Q. 

B.  379),  1346. 
Reager  v.  Kendall  ( —  Ky.  App. ): 

901,  905,  906. 
Reber  v.  Schitler  (141  Pa.  St.  640), 

658. 
Rechten  v.  McGary  (117  Ind.  132), 

,1181. 
Rector  Provision  Co.   v.   Sauer   (69 

Miss.  235),  445. 
Redding  v.  Godwin  (44  Minn.  355), 

1843. 
Redding  v.  Wright  (49  Minn.  322), 

1841. 
Redenbaugh  v.  Kelton  (130  Mo.  558), 

599,  603. 
Redewill  v.  Gillen  (4  N.  Mex.  72),  599. 


TABLE    OF    CASES    CITED. 


clxix 


References  are  to  sections:  Vol.  I,  §§  1-797;  Yol.  n,  §§  798-1850. 


Redfield  v.  Buck  (35  Conn.  328),  973, 

974. 
Redgrave   v.    Hurd  (20  Ch.  Div.  1). 

863. 
Redington  v.  Roberts   (25  Vt,   686), 

906. 
Redman  v.  Durant,  State  ex  reL  (53 

Ma  App.  493).  964 
Redmond  v.  Smock  (28  Md.  365),  1633. 
Redpath  v.  Brown  (71  Mich.  258),  923. 
Re  ius  v.  Holcomb  ( —  Miss.  — ),  441. 

445. 
Red  Wing  Mfg.  Co.  v.  Moe  (62  Wis. 

240),  1255. 
Reed,  In  re  (3  Ch.  Div.  123),  269. 
Reed  v.  Baggott  (5  111.  App.  257),  175. 

Reed  v.  Boshears  (4  Sneed,  118), . 

Reed  v.  Bremer  (90  Tex.   144),  1022. 
Reed  v.  Hastings  (61   111.  266),  1235, 

1237,  1242,  1254,  1255. 
Reed  v.  Newcomb  (64  Vt.  49),  138. 
Reed  v.  Randall  (29  N.  Y.  358),  1340, 

1380,  1390,  1391,  1302.  1395. 
Reed  v.  Reed  (70  Me.  504),  960. 
Reed  v.  Starkey  (69  Vt.  200  ,  588,  597. 
Reed  v.  Upton  (10  Pick.  522),  554. 
Reed  v.  Van  Ostrand  (1  Wend.  424). 

Reeder  v.  Machen  (57  Md.  56),  714. 
Reeder  v.  Moore  (95  Mich.  594),  92*. 
Reeder  Bros.  Shoe  Co.  v.  Prylinski 

(102  Mich.  468).  9    J,  922. 
Rees  v.  Mitchell  (41  111.  36S),  960. 
Reese  v.  Bates  (94  Va.  321),  1235, 1242. 

1281,  1282,  1284. 
Reese  v.  Miles  (99  Tenn.  398),  1817, 

1820,  1833,  1834 
Reese  River  Mining  Co.  v.  Smith  (L. 

R.  4  H.  L.  64),  857,  876. 
Reeves  v.  Corning  (51  Fed.  R.  774), 

871,  872,  934. 
Reeves  v.  Corrigan  (3  N.  Dak.  415), 

1254 
Reeves  v.  Sebern  (16  Iowa,  234),  38. 
Reggio  v.  Braggiotti  (7  Cush.  166), 

1798,  1817,  1834,  1843. 


Regier  v.  Craver  (54  Neb.  507),  603. 
Reherd  v.  Clem  (86  Va.  374),  29. 
Reichwald  v.  Commercial  Hotel  Co. 

(106  III.  439),  141. 
Reid  v.  Diamond  Plate  Glass  Co.  (54 

U.  S.  App.  619),  438 
Reid  v.  Cowduroy  (79  Iowa,  169),  892, 

901,  906. 
Reid  v.  Field  (83  Va.  26),  1374. 
Reid  v.  Hoskins  (4  E.  &  B.  979),  1097. 
Reid  v.  Hoskins  (5   EL   &    BL   729), 

1088 
Reid  v.  Hoskins  (6    EL   &    BL   953), 

1089. 
Reid  v.  Kempe  (74  Minn.  474),  896. 
Reid  v.  Lloyd  (67  Mo.  App.  513),  901. 
Reiger  v.  Worth  (127  N.  C.  230),  1823. 
Reinhart  v.  Gregg  (8  Wash.  191),  390. 
Remick  v.  Sandford  (120  Mass.  309  , 

358,  359,  369,  372,  395,  403. 
Remick  v.  Sandford  (118  Mass.  102), 

446,  464,  405. 
Renninger  v.  Spate  (128  Pa,  St  524', 

952,  960,  964,  988. 
Renoe  v.   Western   Milling  Co.   (53 

Kan.  255),  603. 
Renselaer,  etc.  R.  R.  Co.  v.  Davis  (43 

X.  Y.  137>,  112. 
Rentch  v.  Long  (27  Md.  188),  323. 
Restad  v.  Engemoend  (65  Minn.  148), 

499,  508. 
Reticker  v.  Katzenstein  (26  111.  App. 

33),  906. 
Reuter  v.  Sala  (4  C.  P.  D.  239),  1141, 

1145,  1161,  1168 
Revercomb  v.  Duker  (74  Mo.  App. 

570),  96L 
Rew  v.  Payne.  (1  C.  P.  D.  47),  787. 
Rex  v.   Whitnash   (7  B.  &   C.   596), 

1052. 
Reynell  v.  Sprye  (1  De  Gex,  M.  &  G. 

660),  1001. 
Reynolds  v.  Boston  &  Me.  R.  Co.  (43 

X.  H.  5S0),  1537.  1542,  1556,  1606. 
Reynolds  v.  Continental  Ins.  Co.  (36 

Mich.  131),  1445. 


clxx 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-707;  Vol.  II,  §§  708-1850. 


Keynolcls  v.  Crawfordsville  Nat.  Bank 

(112  U.  S.  405),  1046. 
Reynolds  v.  Ferree  (86  111.  570),  1455. 
Reynolds  v.  Franklin  (44  Minn.  30), 

1843. 
Reynolds  v.  McCurry  (100   111.   356), 

109. 
Reynolds  v.  Palmer  (21  Fed.  R.  433), 

1298,  1320. 
Reynolds  v.  Sweetzer  (15  Gray,  78), 

184. 
Reynolds  v.  Waller  (1  Wash.  164),  87. 
Rhine  v.  Blake  (59  Tex.  240),  1455. 
Rhines  v.  Phelps  (3  Gilm.  455),  960. 
Rhoades  v.  Castner  (12  Allen,  132), 

429. 
Rhoades  v.  Fuller  (139  Mo.  179),  74. 
Rhode  v.  Thwaites  (6  B.  &  C.  388), 

729. 
Rhode  Island  Loco.  Works  v.  Lumber 

Co.  (91  Ga.  639),  599,  603. 
Rhodes  v.  Belchee  (36  Oreg.  141),  1453. 
Rhodes  v.  Cotton  (90  Me.  453),  1134. 
Rhodes  v.  Forwood  (L.  R.  1  App.  Cas. 

256),  263. 
Rice  v.  Boyer  (108  Ind.  472),  95,  98, 

107,  116. 
Rice  v.  Butler  (160  N.  Y.  578),  119, 

132. 
Rice  v.  Churchill  (2  Denio,  145),  734, 

1124. 
Rice  v.  Codman  (1  Allen,  377),  1262, 

1337. 
Rice  v.  Cutler  (17  Wis.  351),  1507. 
Rice  v.  Forsyth   (41   Md.  389),  1311, 

1348. 
Rice  v.  Glass  Co.  (88  111.  App.  407), 

1633. 
Rice  v.  Groffmann  (56  Mo.  434),  — . 
Rice  v.  Manley  (66  N.  Y.  82),  1643. 
Rice  v.  Nixon  (97  Ind.  97),  25. 
Rice  v.  Western  Fuse  Co.  (64  111.  App. 

603),  207. 
Richards  v.  Borroughs  (62  Mich.  117), 

361. 
Richards  v.  Fuller  (37  Mich.  161),  255. 


Richards  v.  Green  (23  N.  J.  Eq.  536), 

449. 
Richards  v.  Porter  (6  B.  &  C.  437), 

427. 
Richards  v.  Railroad  Co.  (44  N.  H. 

136),  141. 
Richards  v.  Schreiber  (98  Iowa,  422), 

619. 
Richards  v.  Shaw  (67  111.  222),  831, 

1162,  1846. 
Richardson  v.  Brown  (1  Bing.  344), 

1251.  1276. 
Richardson  v.  Buhl  (77  Mich.  632), 

208. 
Richardson  v.  Coffman  (87  Iowa,  121), 

1235,  1242. 
Richardson   v.  Cooper  (25  Me.  450), 

1151. 
Richardson  v.  Dunn  (2  Q.  B.  222),  242, 

746. 
Richardson  v.  Goss(3  Bos.  &  Pul.  119), 

1577. 
Richardson  v.   Grandy  (49  Vt.   22), 

1237,  1811. 
Richardson  v.  Great  Western  Mfg. 

Co.  (3  Kan.  App.  445),  594. 
Richardson  v.  Hooper  (13  Pick.  446), 

804. 
Richardson  v.  Johnson  (1  La.  Ann. 

389),  1272. 
Richardson  v.  Marshall  County  (100 

Tenn.  346),  1303,  1332. 
Richardson  v.  Mason  (53  Barb.  601), 

1266. 
Richardson  v.  Nathan   (167  Pa.  St. 

513),  792. 
Richardson  v.  Nob;e  (77  Me.  390),  937. 
Richardson  v.  Olmstead  (74  111.  213), 

21. 
Richardson  v.  Plate  (93  Ind.  423),  79. 
Richardson  v.  Rardin   (88    111.  124), 

960. 
Richardson  v.  Strong  (13  Ired.  L.  106), 

84. 
Richardson  Drug  Co.  v.  Teasdall  (52 

Neb.  698),  613,  636,  637,  642. 


TABLE    OF    CASES    CITED. 


clxxi 


References  are  to  sections:  Vol.  I,  §§  1-797;  "Vol.  H,  §§  798-1850. 


Richardson  Dry  Goods  Co.  v.  Good- 
kind  (22  Mont.  462),  896,  898. 
Richart  v.  People  (19  111.  85),  55. 
Richey  v.  Daemicke  (86  Mich.  647), 

1240. 
Richmond  v.  Crudup  (Meigs,  581),  960. 
Richmond  v.  Foss  (77  Me.  590),  1050. 
Richmond  v.  Mississippi  Mills  (52  Ark. 

30),  892,  894. 
Richmond  v.  Moore  (107  111.  429),  1052. 
Richter  v.  Frank   (41  Fed.  R.   859), 

1037. 
Rickard  v.  Moore  (38  L.  T.  841),  369. 
Ricker  v.  Cross  (5  N.  H.  571),  483,  981, 

987,  1201. 
Ricker  v.  Ham  (14  Mass.  137),  953. 
Ricketts  v.  Sisson  (9  Dana,  35:>),  1350, 

L852. 
Rickey  v.  Ten  Broeck  (63  Mo.  563), 

401,  163a 
Riddle  v.  Brown  (20  Ala.  412),  336. 
Riddle  v.  Varnum  (20  Pick.  280),  499, 

502,  518,  519,  52  1. 
Riddle  v.  Webb  (110  Ala.  599),  1268, 

1305. 
Rider  v.  Kelley  (32  Vt  268),  754,  763. 
Ridgeway  v.  Herbert   (150  Mo.  606), 

109. 
Ridgeway  v.  Kennedy  (52  Mo.  24), 

599. 
Ridgeway  v.  Underwood   (4  Wash. 

C.  C.  129),  973. 
Ridgeway  v.  Wharton  (6  H.  L.  Cas. 

238),  235,  426. 
Ridgley  v.  Mooney  (16  Ind.  App.  362), 

1633,  1690. 
Riendeau  v.  Bullock  (147  N.  Y.  269), 

1074. 
Rigg  v.  Reading,  etc.  St.  Ry.  Co.  (191 

Pa.  St.  298),  1718, 1728.  1733. 
Riggs  v.  Thorpe  (67  Minn.  217),  875. 
Riggan  v.  Greene  (80  N.  C.  236),  72.  77. 
Riggins  v.  Railroad  Co.  (73  Mo.  598), 

264. 
Rigney  v.  Monette  (47  La.  Ann.  648), 

1778. 


Riley  v.  Farnsworth  (116  Mass.  223), 

428,  443. 
Riley  v.  Hale  (158  Mass.  240),  1089. 
Riley  v.  Mallory  (33  Conn.  201),  109, 

116,  119. 
Riley  v.  Vaughan  (116  Mo.  169),  953. 
Rinchler  v.  Jeliffe  (9  Daly,  469),  1357. 
Rindskopf  v.  De  Ruyter  (39  Mich.  1), 

365,  731. 
Rinehart  v.  Olwine  (5  W.  &  S.  162), 

1664 
Riordan  v.  Doty  (50  S.  C.  537),  1039. 
Ripley  v.  .Etna  Ins.  Co.  (30  N.  Y.  136), 

1070. 
Ripley  v.  Case  (78  Mich.  126),  839, 932, 

'940,  1850. 
Rising  v.  Patterson  (5  Whart.  316), 

1420. 
Risinger  v.  Cheney  (7  111.  84),  1106. 
Ritchie  v.  Atkinson  (10  East,  295), 

1163. 
Ritter  v.  Singmaster  (73  Pa.  St.  400), 

1422. 
Rivers  v.  Gregg  (5  Rich.  Eq.  274),  127, 

129,  130,  132. 
Riverside  Iron    Works  v.   Hall   (64 

Mich.  165),  1423,  1425,  1431. 
Rob  bins  v.  Chipman  (1  Utah,  335), 

702. 
Robbins  v.  Chipman  (2  Utah,  347), 

702. 
Robbins  v.  Clark  (129  Mass.  145),  673. 
Robbins  v.  Eaton  (10  N.  H.  562),  109, 

121. 
Robbins  v.  Oldham  (1  Duvall,   28), 

964. 
Robbins  v.  Phillips  (68  Mo.  100),  599, 

624. 
Roberts  v.  Applegate  (153  111.  210), 

1242,  1243. 
Roberts  v.  Beatty  (2  Pen.  &  Watts, 

67),  41. 
Roberts  v.  Brett  (11  H.  L.  Cas.  337), 

1134. 
Roberts  v.  Burr  ( —  Cal.  — ),  964. 
Roberts  v.  Fisher  (43  N.  Y.  159),  1430. 


clxxii 


TABLE   OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  708-1850. 


Roberts  v.  French  (153  Mass.  60),  882, 

938. 
Roberts  v.  Hawn  (20  Colo.  77),  964. 
Roberts  v.  Hunt  (61  Vt.  612),  599,  603. 
Roberts  v.  Jenkins  (21  N.  H.  116),  1270. 
Roberts  v.  Radcliff  (35  Kan.  502),  904. 
Roberts  v.  Ward  (4  McLean,  565',  834, 
Roberts  v.  Wiggin  (1  N.  H.  73),  109. 
Robertson  v.  Clarkson  (9  B.  ? Ion.  507), 

1272. 
Robertson  v.  Hays  (83  Ala.  290),  1045. 
Robertson  v.  Hunt  (77  Tex.  321),  492. 
Robertson  v.  Strickland  (28  Up.  Can. 

Q.  B.  221),  520. 
Robertson  v.  Vaughn  (5  Sandf.  1), 

305,  307. 
Robeson  v.  French  (12  Mete.  24),  1056. 
Robinson  v.  Anderson  (106  Ind.  152), 

1455. 
Robinson  v.  Batchelder  (4  N.  H.  40), 

1151. 
Robinson  v.  Berkey  (100  Iowa,  136), 

1384,  1813. 
Robinson  v.  Berry  (93  Me.  320),  120. 
Robinson  v.  Bland  (2  Burr.  1077),  1004. 
Robinson  v.  Brooks  (40  Fed.  R.  525), 

1083, 1134. 
Robinson  v.  Chapline  (9  Iowa,  91),  599. 
Robinson  v.  Chemical  Bank  (86  N.  Y. 

404),  1461. 
Robinson,  Constable,  v.  Cooper  (1  Hill, 

286),  1307. 
Robinson  v.  Fairbanks  (81  Ala.  132), 

676. 
Robinson  v.  Green  (3  Mete.  159),  1004. 
Robinson  v.  Harvey  (82  111.  58),  1235, 

1237. 
Robinson  v.  Holt  (39  N.  H.  557),  642. 
Robinson  v.  Hyer  (35  Fla.  544),  1763. 
Robinson  v.  Levi  (81  Ala.   134),   148, 

878,  895,  903,  904. 
Robinson  v.  Mollett  (L.  R.  7  H.  L. 

802),  467. 
Robinson  v.  Morgan  (65  Vt.  37),  1474, 

1476,  1500,  1502,  1521. 
Robinson  v.  McNeill  (51  HI.  225),  1254. 


Robinson  v.  Noble  (8  Pet.  181),  1167. 
Robinson  v.  Page  (3  Russ.  114),  804. 
Robinson  v.  Pogue  (86  Ala.  257),  788, 

£09,  1182. 
Robinson  v.  Stewart  (10  N.  Y.  189), 

957,  975. 
Robinson  v.  Stuart  (68  Me.  61),  1194. 
Robinson  v.  Weeks  (56  Me.  102),  122. 
Robinson  Mach.  Works  v.  Chandler 

(56  Ind.  575),  1347. 
Robinson  Mercantile  Co.  v.  Thomson 

(74  Miss.  847),  187. 
Robison  v.  Tyson  (46  Pa.  St.  286),  1130. 
Robson  v.  Bohn  (27  Minn.  333),  1148. 
Robson  v.  Drummond  (2  B.  &  Ad. 

303),  1097. 
Robson  v.  Miller  (12  S.  C.  586),  1240, 

1251,  1344. 
Robson  v.  Watts  (11  Tex.  764),  1455. 
Roby  v.  West  (4  N.  H.  285),  1048. 
Rocco  v.  Frapoli  (50  Neb.  665),  996. 
Rocheblave  v.  Potter  (1  Mo.  561),  960. 
Rochester  Distilling  Co.  v.  Rosey  (142 

N.  Y.  570),  202. 
Rochester  Oil  Co.  v.  Hughey  (56  Pa. 

St.  322),  728,  735,  750. 
Rockafeller  v.  Merritt  (40  U.  S.  App. 

666),  1843. 
Rockafellow  v.  Baker  (41  Pa.  St.  319), 

880. 
Rockford,  etc.  R.  Co.  v.  Lent  (63  111. 

288),  1161. 
Rock  Island  Plow  Co.   v.  Meredith 

(107  Iowa,  498),  1387. 
Rockwell  v.  Humphrey  (57  Wis.  410), 

578. 
Rodee  v.  Wade  (47  Barb.  53),  41,  711. 
Rodger  v.  Comptoir  L'Escompte  (L. 

R.  2  Pr.  Coun.  393),  1565. 
Rodgers  v.  Bach  man  (109  Cal.  552), 

564,  588,  597,  599,  614,  620,  625. 
Rodgers  v.  Bass  (46  Tex.  505),  1455. 
Rodgers  v.  Jones  (129  Mass.-  420),  377, 

386,  392. 
Rodgers  v.  Niles  (11  Ohio  St.  48),  1317, 
1340,  1344,  1346. 


TABLE   OF    CASES    CITED. 


clxxiii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Rodgers  v.  Perrault  (41   Kan.  385), 

1254, 1255. 
Rodick  v.  Coburn  (68  Ma  170),  1455. 
Rodliff  v.  Dallinger  (141  Mass.  1),  149, 

269,  887. 
Rodman  v.  Guilford  (112  Mass.  405), 

757,  1162. 
Rodman  v.  Thalheimer  (75  Pa.  St. 

232),  904,  906. 
Rodwell  v.  Phillips  (9  M.  &  W.  501), 

343. 

Roe  v.  Bacheldor  (41  Wis.  300),  1260. 

Roebling  Son's   Co.   v.  Lock  Stitch 

Fence  Co.  (130  111.  660),  1088,  1089, 

1090,  1633,  1643,  1707. 

Roehm  v.  Horst  (178  U.  S.  1),  1089, 

1700,  175S. 
Rogers  v.  Abbott  (128  Mass.  102),  971. 
Rogers  v.  Blackwell  (49  Mich.  192), 

72,  79. 
Rogers  v.  Burr  (105  Ga.  432),  331. 
Rogers  v.  Cox  (96  Ind.  157),  334.  645. 
Rogers  v.  Evans  (3  Ind.  574),  952. 
Rogers  v.  Hanson  (35  Iowa,  283),  816, 

1805. 
Rogers  v.  Highland   (69  Iowa,  504), 

636. 
Rogers  v.   Humphrey  (39  Me.  382), 

1050. 
Rogers  v.  Niles  (11  Ohio  St.  48),  1314. 
Rogers  v.  Rogers  (139  Mass.  440),  806. 
Rogers  v.  Thomas  (20  Conn.  53),  1540, 

1542,  1612. 
Rogers  v.  Van  Hoesen  (12  Johns.  221), 

1127,  1130. 
Rogers  v.  Walker  (6  Pa.  St.  371),  68, 77. 
Rogers  v.  Whitehouse  (71  Me.  222),  556, 

597,  601. 
Rogers  v.  Woodruff  (23  Ohio  St.  632), 

652. 
Rogers  Locomotive  Works  v.  Lewis 

(4  Dill.  158),  603. 
Roget  v.  Merritt  (2  Caines,  117),  1430. 
Rohde  v.  Thwaites  (6  B.  &  C.  388),  759. 
Rohn  v.  Dennis  (109  Pa.  St.  504),  564. 
Roland  v.  Gundy  (5  Ohio,  202),  269. 


Romaine  v.  Van  Allen  (26  N.  Y.  307), 

1787. 
Roman  v.  Bressler  (49  Neb.  368;,  361, 

1391. 
Romeo   v.  Martucci  (72  Conn.  504), 

601. 
Romero  v.  Newman  (50  La.  Ann.  80), 

1103. 
Rommel  v.  Wingate  (103  Mass.  327), 

746,  1134,  1158. 
Rondeau  v.  Wyatt  (2  H.  BL  63),  297, 

298,  299. 
Rood  v.  Welch  (28  Conn.  157),  960. 
Roof  v.  Pulley  Co.  (36  Fla.  284),  599. 
Roof  v.  Stafford  (7  Cow.  179),  107, 109. 
Roome  v.  Jenning  (2  N.  Y.  Misc.  R. 

257),  910. 
Root  v.  French  (13  Wend.  570),  923. 
Roper  v.  Johnson   (8  Com.  PI.  167), 

1711,  1746,  1753. 
Ropes  v.  Allen  (11  Allen,  591),  991. 
Ropes  v.  Lane  (9  Allen,  502),  714,  725, 

964. 
Roquemore  v.  Alloway  (33  Tex.  461), 

1024. 
Rose  v.  Beatie  (2  Nott  &  McC.  538), 

1322. 
Rose  v.  Brown  (11  W.  Va.  122).  973. 
Rose  v.  Colter  (76  Ind.  590),  960. 
Rose  v.  Mitchell  (6  Colo.  102),  1013. 
Rose  v.  Story  (1  Pa.  St.  190),  32,  580. 
Roseman  v.  Canovan  (43  Cal.   110), 

881, 1272. 
Rosenbaum  v.  Weeden  (18  Gratt.  785), 

1633,  1637,  1640,  1642,  1682. 
Rosenblatt  v.  Townsley  (73  Mo.  536), 

1055. 
Rosenfield  v.  Swenson  (45  Minn.  190), 

1382,  1392. 
Rosenthal  v.  Kahn  (19  Oreg.  571),  520, 

673. 
Rosenthal  v.  Risley  (11   Iowa,  541), 

714. 
Rosevear  China  Clay  Co.,  Ex  parte 

(11  Ch.  Div.  560),  741,  1550,  1561. 
Ross  v.  Allen  (45  Kan.  231),  434. 


clxxiv 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol. 

Ross  v.  Draper  (55  Vt.  404),  964. 
Ross  v.  Miner  (67  Mich.  410),  902,  904, 

905. 
Ross  v.  McDuffie  (91  Ga.  120),  569. 
Ross  v.  Welch  (11  Gray,  235),  1199. 
Ross-Mehan   Foundry  Co.  v.  Ice  Co. 

(72  Miss.  608),  592. 
Rossiter  v.  Miller  (3  App.  Cas.  1124), 

235,  434,  435. 
Rossman  v.  McFarland  (9  Ohio  St. 

369),  1044. 
Roswald  v.  Hobbie  (85  Ala.  73),  955. 
Roth  v.  Palmer  (27  Barb.  652),  912, 

1411. 
Roth  &  Co.  v.  Taysen  &  Co  (73  L.  T. 

R  628),  1707. 
Rothwell  v.  Alves  (60  111.  App.  156), 

492. 
Roundtree  v.  Baker  (52  111.  241),  1043. 
Rourke  v.  Bullens  (8  Gray,  549),  508. 
Routledge  v.  Grant  (4  Bing.  653),  228, 

252,  253. 
Rovegno  v.    Defferari  (40  Cal.  459), 

27S. 
Rowe  v.  Blanchard  (18  Wis.  441),  834. 
Rowe  v.  Osborne  (1  Stark.  140),  468. 
Rowe  v.  Pickford  (8  Taunt.  83),  1577. 
Rowe  v.  Sharpe  (51  Pa.  St.   26),  32, 

580,  600. 
Rowland   v.    Shelton    (25  Ala.    217), 

1794,  1798. 
Rowley  v.  Bigelow  (12  Pick.  307),  148, 
902,  905,  923,  1523,  1548,  1551,  1612. 
Royal  v.   Aultman-Taylor   Co.    (116 

Ind.  424),  1073. 
Rozier  v.  Williams  (92  111.  187).  960. 
Rubber  Co.  v.  Adams  (23  Pick.  256), 

880. 
Rubin  v.  Sturtevant  (51  U.  S.  App. 

286),  1395,  1398, 1802. 
Ruck  v.  Hatfield  (5  B.  &  Aid.  632), 

774,  1497. 
Rucker  v.   Donovan   (13  Kan.  251), 

1531,  1571.  1579,  1606,  1608,  1612. 
Ruck  man  v.  Bergholz  (37  N.  J.  L.  437), 
1046,  1051. 


I,  §§  1  79T;  Vol.  n,  §§  798-1850. 

Rudy  v.  Austin  (56  Ark.  73),  973,  974. 
Ruff  v.  Jarrett  (94  111.  475),  1255. 
Ruff  v.  Rinaldo  (55  N.  Y.  664),  1079, 

1389. 
Rugg  v.  Minett  (11   East,   210),  515, 

1413. 
Rugg  v.  Moore  (110  Pa.  St.  236),  1148, 

1163. 
Ruggles  v.  First  Nat.  Bank  (43  Mich. 

192),  342. 
Rumpf  v.  Barto  (10  Wash.  382),  30, 

160. 
Rumsey  v.  Berry  (65  Me.  570),  1031, 

1032. 
Rundlett  v.  Weeber  (3  Gray,  263),  1004. 
Ruohs  v.  Third  Nat.  Bank  (94  Tenn. 

57),  1303,  1332. 
Rupley  v.  Daggett  (74  111.  351),  278. 
Rushing  v.  Clancy  (92  Ga.  769),  138. 
Rusk  v.  Fenton  (14  Bush,  490),  77. 
Russell,   Ex   parte   (19   Ch.   D.   588), 

974. 
Russell  v.  Bandeira  (13  C.  B.  149),  1106.. 
Russell  v.  Carrington  (42  N.  Y.  118), 

711. 
Russell  v.  Long  (52  Iowa,  250).  139. 
Russell  v.  Meyers  (32  Mich.  522),  336. 
Russell  v.  Minor  (22  Wend.  659),  546, 

1437. 
Russell  v.  Murdock    (79    Iowa,    101), 

1057,  1384. 
Russell  v.  Nicoll  (3  Wend.  112),  513, 

652. 
Russell  v.  O'Brien  (127  Mass.  349),  1193, 

1194. 
Russell  v.  Richards  (10  Me.  429)  335, 

336. 
Russell  v.  Savings    Bank    (39    Mich. 

G71),  137. 
Russell  v.  Southard  (12  How.  139),  40. 
Russell  &  Co.  v.  Lilienthal  (36  Oreg. 

105),  1398. 
Rutan  v.  Hinchman  (30  N.  J.  L.  255), 

328. 
Rutan  v.  Ludlam  (29  N.  J.  L.  398), 
1817,  1818. 


TABLE    OF    CASES    CITED. 


clxxv 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-18.c0. 


Ruthrauff  v.  Hageubuch  (58  Pa.  St. 

103),  485,  503. 
Ryan  v.  Brant  (42  111.  78),  915. 
Ryan  v.  Hall  (13  Mete.  520),  446. 
Ryan  v.  McLane  (91  Md.  175),  1727. 
Ryan  v.  Ryan  (97  111.  38),  947. 
Ryan  v.  Smith  (165  Mass.  303),  133. 
Ryan  v.  Ulmer  (108  Pa.  St.  332),  1245, 

1298,  1334.  1336. 
Ryan  v.  Wayson  (108  Mich.  519),  595, 

605,  613.  630. 
Ryder  v.  Cooley  (58  Conn.  367),  565. 
Ryder  v.  Hathaway    (21    Pick.  298), 

642. 
Ryder  v.  Neitge    (21  Minn.  70),  1356, 

1357. 
Ryder  v.  Wombwell  (L.  R  4  Ex.  32), 

130,  132. 
Ryerson  v.  Chapman   (66  Me.   557), 

1798. 
Rylands  v.  Kreitman  (19  C.  B.  351), 

1158. 
Ryle  v.  Loom  Works  (87  Fed.  R.  976), 

600. 
Rynearson  v.  Turner  (52  Mich.  7),  971. 
Sabre  v.   Smith  (62  N.  H.  663),  434, 

438,  449. 
Safford,  Ex  parte  (2  Low.).  563. 
Safford  v.  Grout  (120  Mass.   20),  882. 
Safford  v.  McDonough  (120  Mass.  290), 

386,  542,  725,  1474,  1670. 
Sage  v.  Sleutz  (23  Ohio  St.  1),  569, 

588. 
Sale  v.  Lambert  (L.  R.  18  Eq.  1),  435. 
Salisbury  v.  Stainer  (19  Wend.  159), 

1322. 
Salle  v.  Light  (4  Ala.  700),  1798. 
Salmon  v.  Boykin  (66  Md.  541),  1138, 

1139, 1161. 
Salmon  Falls  Mfg.  Co.  v.  Goddard 

(14  How.  447),  426,  434, 436, 439, 451, 

455,  456. 
Salt  Co.  v.  Guthrie  (35  Ohio  St.  666), 

208. 
Salte  v.  Field  (5  T.  R  211),  1591.  1592. 
Salter  v.  Burt  (20  Wend.  205),  1135. 


Salter  v.  Woollams  (2  Man.  &  Gr. 

650),  1192,  1193. 
Saltus  v.  Everett  (20  Wend.  267),  154, 

156,  269,  890,  923. 
Salvo  v.  Duncan  (49  Wis.  151),  1831. 
Sample  v.  Bridgforth  (72  Miss.  293), 

276. 
Sampson  v.  Townsend  (25  La.  Ann. 

78),  1022. 
Sampson     v.    Williamson    (6    Tex. 

102),  8. 
Samuel  v.  Cheney  (135  Mass.  278), 

887. 
Samuels  v.   Guin  (49   Mo.   App.   8), 

1273. 
San  Antonio  Brewing  Ass'n  v.  Arctic 

Mfg.  Co.  (81  Tex.  99),  603. 
Sanborn  v.  Benedict  (78  111.  309),  202, 

1130,  1189,  1691. 
Sanborn   v.  Chamberlin   (101    Mass. 

409),  461. 
Sanborn  v.  Chittenden  (27  Vt.  171), 

565. 
Sanborn  v.  Flagler  (9  Allen,  474),  434, 

438,  451. 
Sanborn  v.  Kittredge  (20  Vt.  632), 

964. 
Sanborn  v.  Shepherd  (59  Minn.  144), 

1407. 
Sandage  v.   Studabaker  Bros.  Mfg. 

Co.  (142  Ind.  148),  833. 
Sandeman  v.  Scurr  (L.  R.  2  Q.  B.  86), 

1549. 
Sanders  v.  Chandler  (26  Minn.  273), 

974 
Sanders  v.  Jameson  (2  C.  &  K.  557), 

1377. 
Sanders  v.  Johnson  (29  Ga.  526),  1052. 
Sanders  v.  Keber  (28  Ohio  St.  630), 

269,  573,  599,  887. 
Sanders  v.  Muegge  (91  Ind.  214),  953. 
Sanders  v.  Norton  (4  T.  B.  Mon.  464), 

1417. 
Sanders  v.  Wilson  (19  D.  C.  555),  569. 
Sandford  v.  Handy  (23  Wend.  260), 

'jaT,  1281. 


clxxvi 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II.  §§  798-1850. 

Savage  Mfg.   Co.  v.  Armstrong  (19 


Sand  ford  v.  Wiggins  Ferry  Co.  (27 

Ind.  522),  755. 
Sands  v.  Codwise  (4  Johns.  596),  945, 

978. 
Sands  v.  Potter  (165  111.  397),  64 
Sands  v.  Taylor  (5  Johns.  395),  1320, 

1329,  1629,  1630,  1643,  1680. 
Sandwich  Mfg.  Co.  v.  Feary  (34  Neb. 

411),  823,  1384. 
Sanford  v.  Dodd  (2  Day,  437),  916. 
Sanger  v.  Dun  (47  Wis.  615),  266. 
Sanger  v.  Hibbard  ( —  Ind.  Ter.  — ), 

109. 
Sanger  v.  Waterbury  (116  N.  Y.  371), 

498,  519. 
Sannoner  v.  King  (49  Ark.  299),  950. 
Santa  Clara  Mill  &  Lbr  Co.  v.  Hayes 

(76  Cal.  387),  1003. 
Sarbecker  v.  State  (65  Wis.  171),  739, 

740,  777,  1181. 
Sargent  v.  Butts  (21  Vt.  99),  1057. 
Sargent  v.  French  (54  Vt  384),  138. 
Sargent  v.  Currier  (49  N.  H.  310),  1797. 
Sargent  v.  Gile  (8  N.  H.  325),  588. 
Sargent  v.  Metcalf  (5  Gray,  306),  549, 

555,  599,  601. 
Sari  v.  Bourdillon  (1  C.  B.,  N.  S.,  188), 

430. 
Satterlee  v.  Cronkhite  (114  Mich.  634), 

630. 
Sattler  v.  Hallock  (160  N.  Y.  291),  23. 
Saunders  v.  Bartlett  (12  Heisk.  316), 

51,  752. 
Saunders  v.  Hackney  (10  Lea,  194), 

451. 
Saunders  v.  Hatterman  (2    Ired.    L. 

32),  880. 
Saunders  v.  Ott  (1  McCord,  572),  132. 
Saunders  v.  Topp  (4  Exch.  390),  1379. 
Saunderson  v.  Jackson  (2  B.  &  P.  238), 

428,  451,  456. 
Savage  v.  Everman   (7   Pa.  St.  315), 

1420. 
Savage  v.   Murphy  (34   N.  Y.   508), 

975. 
Savage  v.  Stevens  (126  Mass.  207),  875. 


Me.  147),  1128. 
Savannah  Cotton  Press  v.  Maclntyre 

(92  Ga.  166),  603. 
Saveland  v.  Green  (40  Wis.  431),  247. 
Savery  v.  Spence  (13  Ala.  561),  1719. 
Saville  v.  Tailored  (1  Ves.  Sr.  101), 

1719. 
Savings  Bank  v.  Albee  (63  N.  H.  152), 

878. 
Sawdon  v.  Andrews  (30  L.  T.,  N.  S., 

23),  1770. 
Sawyer  v.  Brossart    (67    Iowa,   678), 

228. 
Sawyer  v.  Dean  (114  N.  Y.  469),  1638, 

1643. 
Sawyer  v.  Gerrisli  (70  Me.  254),  200. 
Sawyer  v.  Joslin  (20  Vt.   172),  1576, 

1577,  1599. 
Sawyer  v.  Luf kin  (56  Me.  308),  84. 
Sawyer  v.  Railway  Co.  (22  Wis.  402), 

549,  1148. 

Sawyer  v.  Smith  (109  Mass.  220),  1046. 
Sawyer  v.  Taggart    (14    Bush,    727), 

1032. 
Sawyer   v.  Ware  (36  Ala.  675),  324, 

328. 
Saxe  v.  Penokee  Lbr.  Co.  (159  N.  Y. 

371),  1736,  1738. 
Sayles  v.  Cox  (95  Tenn.  579),  49. 
Sayles  v.  Wellman  (10  R.  I.  465),  1057. 
Scales  v.  Wiley  (68  Vt.  39),  308. 
Scanlan  v.  Cobb  (85  111.  296),  74. 
Scanlan  v.  Geddes  (112  Mass.  15),  437. 
Scarbrough  v.  Alcorn  (74  Tex.  358), 

485. 
Scarlett  v.  Snodgrass  (92  Ind.  262), 

138. 
Schaible  v.  Ardner  (98  Mich.  70),  970. 
Schankel  v.  Moffatt  (53  I1L  App.  382), 

1013. 
Schaps  v.  Lehnen  (54  Minn.  208).  77. 
Scharpf  v.  Meyer  (133  Mo.  428),  549, 

550,  736,  779,  791,  792. 

Schell  v.  Stephens  (50  Mo.  375),  1302. 
Schenck  v.  Saunders  (13  Gray,  32),  23. 


TABLE    OF    OASES    CITED. 


clxxvii 


References  are  to  sections:  Vol 

Schenectady  Stove  Co.  v.  Holbrook 

(101  N.  Y.  45),  224. 
Schindler  v.  Houston  (1  Denio,  48), 

478. 
Schindler  v.  Westover  (99  Ind.  393), 

25. 
Schlee  v.  Guckenheimer  (179  111.  593), 

1043. 
Schlesinger  v.  St  rat  ton  (9  R.  L  578), 

078.  681,  682. 
Schloss  v.  Feltus  (96  Mich.  619),  923, 

924.  925,  1370,  1375. 
Schmentz  v.  Dwyer  (53  Pa.  St.  335), 

736. 
Schmidt  v.  Nunan  (63  Cal.  371).  750. 
Schmidt  v.  Thomas  (75  Wis.  529),  358, 

361. 
Schneider  v.  Heath  (3   Camp.  506), 

933. 
Schneider  v.  Norris  (2  M.  &  S.  286), 

451. 
Schneider  v.  Oregon  Co.   (20  Oreg. 

172),  1412,  1662,  1674. 
Schneider  v.  Sansom  (62  Tex.  201), 

144. 
Schneider  v.  Turner  (130  111.  28),  1034, 

1043. 
Schnitzer   v.  Oriental  Print  Works 

(114  Mass.  123),  1328. 
Schoenberger  v.  City  of  Elgin  (164 

111.  80),  1351. 
Schofield  v.  Schiffer  (156  Pa.  St.  65), 

905,  918. 
Scholefield  v.  Robb  (2  Mood.  &  R.  210), 

1270. 
Scholfield  Gear  &  Pully  Co.  v.  Schol- 
field (71  Conn.  1),  875,  1840. 
School  Directors  v.   Trafethren  (10 

Bradw.  127),  253,  257. 
Schoonmaker  v.  Keely  (42  Hun,  299), 

915,  917,  919. 
Schopp  v.  Taft  (106  Iowa,  612),  1391. 
Schotsmans  v.   Railway  Co.   (2  Ch. 

App.  332),  735,  779,  787),  1526,  1545, 

1548,  1550,  1620. 
Schrader  v.  Hoover  (80  Iowa,  243),  139. 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Schramm  v.  Boston  Sugar  Ref.  Co. 

(146  Mass.  211),  1254,  1690. 
Schram  v.  Strousel  (28  S.  W.  R.  262), 

895. 
Schramm  v.  Taylor  (51  Kan.  547),  955. 
Schubert  v.  Clark  (49  Minn.  331),  878. 
Schuchardt  v.  Aliens  (1  Wall.  359), 

1281, 1287,  1320.  1810. 
Schuff  v.  Ranson  (79  Ind.  458),  72,  73. 
Schumacher  v.  Allis  (70  111.  App.  556), 

647. 
Schuruaker  v.  Mather  (133  N.  Y.  590), 

1841. 
Schurmeier  v.  English  (46  Minn.  306), 

1835. 
Schuyler  v.  Russ  (2  Caines,  202),  1272. 
Schwartz  v.  McCloskey  (156  Pa.  St. 

258),  914. 
Schwenk  v.  Wyckoff  (46  N.  J.  Eq. 

560),  200. 
Scott  v.  Brown  (2  Q.  B.  724),  995. 
Scott  v.  Dry  Goods  Co.  (48  Mo.  App. 

521),  1590. 
Scott  v.  England  (2  DowL  &  L.  520), 

1674. 
Scott  v.  Gilmore  (3  Taunt.  226),  1004. 
Scott  v.  Hix  (2  Sneed,  192),  1302. 
Scott  v.  Hough  (151  Pa.  St.  630),  620. 
Scott  v.  Irving  (1  B.  &  Ad.  605),  1455. 
Scott  v.  King  (12  Ind.  203),  714. 
Scott  v.  Kittanning  Coal  Co.  (89  Pa. 

St.  231),  1145,  1148. 
Scott  v.  Littledale  (S  E.  &  B.  815),  848. 
Scott  v.  McGrath  (7  Barb.  53),  1281. 
Scott  v.  Pettit  (3  Bos.  &  Pul.  469), 

1577. 
Scott  v.  Railway  Co.  (12  M.  &  W.  38), 

283,  349. 
Scott  v.  Raymond  (31  Minn.  437),  1394. 
Scott  v.  Renick  (1  B.  Mon.  63),  1314, 

1355. 
Scott  v.  Scott  (2  A.  K.  Marsh.  217), 

1302,  1795. 
Scott  v.  Warner  (2  Lans.  49).  274. 
Scott  v.  Wells  (6  Watts  &  S.  368), 

519,  524. 


clxxviii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Scott  Lumber  Co.  v.  Hafner-Lotliam 

Mfg.  Co.  (91  Wis.  667),  1811,  1690. 
Scotten  v.  Sutter  (87  Mich.  526),  499, 

516. 
Scranton  v.  Clark  (39  N.  Y.  220),  1302, 

1305. 
Scranton    v.   Steward   (52    Ind.   68 >, 

108. 
Screws  v.  Roach  (22  AK  675),  508. 
Scriven  v.  Moote  (36  Mich.  64),  342. 
Scroggin  v.  Wood  (87  Iowa,  497),  684, 

875. 
Scudder  v.  Bradbury  (106  Mass.  422), 

541,  549,  564. 
Scudder  v.  Worster  (11  Cush.  573), 

695,  714. 
Scully  v.  Dodge  (40  Kan.  395),  1455. 
Scull  v.  Shakespear  (75  Pa.  St.  297), 

755. 
Seale  v.  Baker  (70  Tex.  283),  878. 
Seals  v.  Robinson  (75  Ala.  363),  973. 
Seanor  v.   McLaughlin  (165  Pa.  St. 

150),  619,  620. 
Searcy  v.  Hunter  (81  Tex.  644),  132. 
Searle  v.  Galbraith  (73  111.  269),  67. 
Seattle  Board  of  Trade  v.  Hayden 

(4  Wash.  263),  138. 
Seattle   Ry.    Co.   v.   Brewing  Co.  (5 

Wash.  462),  1410. 
Seaver  v.  Phelps  (11  Pick.  304),  74, 77, 

79. 
Seavy  v.  Potter  (121  Mass.  297),  909. 
Seavy  v.  Dearborn  (19  N.  H.  351),  953. 
Sebastian  May  Co.  v.  Codd  (77  Md. 

293),  1426. 
Seckel  v.  Stott  (66  111.  106),  498,  527. 
Secomb  v.  Nutt  (14  B.  Mon.  261).  1540, 

1556,  1602. 
Second  Nat.  Bank  v.  Cummings  (89 

Tenn.  609),  779. 
Second  Nat.  Bank  v.  Walbridge  (19 

Ohio  St.  419),  1507. 
Second  Nat.  Bank  v.  Wentzell  (151 

Pa.  St.  142),  1429. 
Secret  Service  Co.  v.  Gill-Alexander 

Mfg.  Co.  (125  Mo.  140),  1729. 


Security  Bank  v.  Luttgen  (29  Minn. 

363),  774,  779. 
Sedgwick  v.  Cottingham   (54  Iowa, 

512),  524,  527,  529,  1081,  1128,   1189. 
Seed  v.  lord  (66  Me.  580),  552. 
Seeger  v.  Duthie  (8  C.  B.,  N.  S.,  45), 

861. 
Seekonk  v.  Rehoboth  (8  Cush.  371), 

1136. 
Seeley  v.  Price  (14  Mich.  541),  65. 
Seeley  v.  Welles  (120  Pa.  St.  69),  8 
Seeligson  v.  Lewis  (65  Tex.  215),  203 

1031,  1039. 
Seeligson   v.   Philbrick  (30  Fed.   R 

600),  774. 
Segrist  v.  Crabtree  (131  IT.  S.  287) 

564.  586,  632,  1423. 
Seidenbender  v.  Charles  (4  Serg.  &  R 

151),  1046. 
Seigwarth  v.  Leppel  (76  Pa.  St.  ""V 

1818. 
Seiple  v.  Irwin  (30  Pa.  St.  513),  1446 

1447,  1448. 
Seim  v.  State  (55  Md.  566),  55. 
Seitz  v.  Brewers'  Refrigerating  Co. 

(141  U.  S.  510),  1254,  1256,  1349. 
Seixas  v.  Woods  (2  Caines,  48),  1334. 
Selby  v.  Selby  (3  Meriv.  2),  451. 
Selch  v.  Jones  (28  Ind.  255),  336. 
Sellers  v.  Stevenson  (163  Pa.  St.  262), 

1311. 
Selser  v.  Roberts  (105  Pa.   St.   242), 

1320,  1321,  1334. 
Selway  v.  Fogg  (5  M.  &  W.  83),  912, 

1411. 
Semenza  v.  Brinsley  (18  Com.  B.,  N. 

S.,  467),  1451. 
Sentance  v.  Poole  (3  Car.  &  P.  1),  73. 
Sequin  v.  Peterson  (45  Vt.  255),  189. 
Settle  v.  Garner  (Oliphant,  86),  1270. 
Setz  v.  Refrigerating  Co.  (141  U.  S. 

510),  1314. 
Sewall  v.  Fitch  (8  Cow.  215),  305,  307. 
Sewall  v.  Henry  (9  Ala.  24),  689. 
Seward  v.  Jackson  (8  Cow.  406),  972. 
Seweh  v.  Eaton  (6  Wis.  490),  527. 


TABLE    OF    CASES    CITED. 


clxx:x 


References  are  to  sections:  Vol.  I,  §§  1-707;  "Vol.  n,  §§  703-1850. 


Sexton  v.  Graham  (53  Iowa,  181),  25, 

26,  612. 
Sexton  v.  Wheaton  (8  Wheat.   229), 

973,  975. 
Seymour  v.  Brown  (19  John.  44),  22. 
Seymour  v.  Davis  (2  Sandf.  239),  305. 
Seymour  v.  Farquhar   (93   Ala.  292), 

564,  585,  599. 
Seymour  v.  Montgomery    (1    Keyes, 

463),  755. 
Seymour  v.  Newton  (105  Mass.   272), 

1530,  1571. 
Seymour  v.  O'Keefe  (44  Conn.  128), 

962,  963. 
Shadbolt,  etc.  Iron  Co.  v.  Topliff  (85 

Wis.  513),  261. 
Shaddon  v.  Knott  (2  Swan,  358),  960. 
Shambaugh    v.   Current  ( Iowa, 

),  1336. 

Shand  v.  Bowes  (1  Q.  B.  Div.  470), 

653. 
Shand  v.  Bowes  (2  App.  Cas.  480), 

1333. 
Shand  v.  Hanley  (71  N.  Y.  319),  973. 
Shardlow  v.  Cotterell  (18  Ch.  D.  280), 

426. 
Sharman   v.  Brandt  (L.  R.  6   Q.  B. 

720),  452,  462,  467. 
Sharp  v.  Carroll  (66  Wis.  62),  413. 
Sharpe  v.  Bettis  ( —  Ky. ),  1817, 

1826. 
Sharpe  v.  San  Pauls  R.  Co.  (L.  R.  8 

Ch.  App.  597),  673. 
Sharpless  v.  Gummey   (166  Pa.   St. 

199),  896. 
Sharpless  Bros.  v.  Derr  (62  Mo.  App. 

359),  967. 
Shattuck  v.   Green  (104    Mass.   42), 

1302. 
Shauer  v.  Alterton   (151   U.  S.  607), 

953. 
Shaul  v.  Harrington   (54  Ark.  305), 

964,  965,  984,  990. 
Shaw  v.  Badger  (12  Serg.  &  R.  275), 

1162. 
Shaw  v.  Carbrey  (13  Allen,  462),  331. 


Shaw  v.  Carpenter  (54  Vt.  155),  1004. 
Shaw  v.  Clark  (6  Vt.  507),  1419. 
Shaw  v.  Hoffman  (21  Mich.  157),  1709. 
Shaw  v.  Lady  Ensley  Coal  Co.  (147 

III.  526),  1625. 
Shaw  v.  Mudd  (8  Pick.  9),  41. 
Shaw  v.  Presbyterian  Church  (39  Pa. 

St.  226),  1428. 
Shaw  v.  Railroad  Co.  (101  U.  S.  557), 

166. 
Shaw  v.  Smith  (48  Conn.  306),  755. 
Shaw  v.  Smith  (45  Kan.   334),   210, 

1334,  1345,  1354,  1823. 
Shaw  v.  Spooner  (9  N.  H.  197),  1004. 
Shaw  v.  Wilshire  (65  Me.  485),  39,  960. 
Shaw  Lumber  Co.   v.  Manville    ( — 

Idaho,  — ),  361. 
Shawhan  v.  Van  Nest  (25  Ohio  St. 

490),  754,  1676,  1696. 
Shealey  v.  Edwards  (73  Ala.  175),  206, 

207,  1659. 
Shean  v.  Shay  (42  Ind.  375),  970. 
Shearer  v.  Park  Nursery  Co.  (103  Cal. 

415),  1817,  1819. 
Sheffield  v.  Mitchell  (31   App.  Div. 

266),  925. 
Sheffield  Canal  Co.  v.  Railway  Co.  (3 

Rail.  &  Can.  Cas.  121),  233. 
Sheffield  Furnace  Co.  v.   Hull  Coal 

Co.  (101  Ala.  446),  264,  741. 
Sheldon  v.  Capron  (3  R.  I.  171),  272. 
Sheldon  v.  Mann  (85  Mich.  265),  955. 
Sheldon  Co.  v.  Mayers  (81  Wis.  627), 

603. 
Sheley  v.  Whitman  (67  Mich.  397), 

433. 
Shelley  v.  Boothe  (73  Mo.  74),  952,  955. 
Shelton  v.  Church  (38  Conn.  416),  954. 
Shelton  v.  Ellis  (70  Ga.  297),  278. 
Shelton  v.  Franklin  (68  111.  333),  499, 

516,  518. 
Shelton  v.  Gillett  (79  Mich.  173),  1136. 
Shepard  v.  Pressey  (32  N  H.  50),  373, 

51S. 
Shepard  &  Morse  Lumber  Co.  v.  Bur- 
roughs (62  N.  J.  L.  469),  1564,  1565. 


clxxx 


TABLE  .  OF    CASES    CITED. 


References  are  to  sections:  Vol. 

Shepherd  v.  Busch  (154  Pa.  St.  149), 

1435,  1925,  1926. 
Shepherd  v.  Gilroy  (46    Iowa,  193), 

1254,  1259. 
Shepherd  v.  Harrison  (L.  R.  4  Q.  B. 

196),  780,  782,  785,  787. 
Shepherd  v.   Jenkins  (73   Mo.   510), 

834 
Shepherd  v.  Kain  (5  B.  &  Aid.  240), 

1236,  1333,  1339. 
Shepherd  v.  Pybus  (3  Man.  &  Gr.  868), 

1317. 
Shepherd  v.  Trigg  (7  Mo.  151),  960. 
Sheppard  v.  Newhall  (54  Fed.  R.  306), 

1566. 
Sheppard  v.  Newhall  (7  U.  S.  App. 

544),  1586,  1587,  1612. 
Sherburne  v.  Shaw  (1  N.  H.  157),  434. 
Sherman  v.  Barnard  (19  Barb.  291), 

199. 
Sherman  v.  Rugee  (55  Wis.  346),  1571, 

1578. 
Sherman  v.  Transportation  Co.  (31  Vt. 

162),  1305. 
Sherman  Center  Town  Co.  v.  Leon- 
ard (46  Kan.  354),  1777,  1779. 
Sherwin  v.  National  Cash  Register 

Co.  (5  Colo.  App.  162),  258. 
Sherwood  v.  Walker  (66  Mich.  568), 

274,  275,  276,  424. 
Sheuer  v.  Goetter  (102  Ala.  313),  923. 
Shickle    v.  Chouteau  (10  Mo.  App. 

241),  1168. 
Shields  v.  Pettee  (2  Sandf.  262),  652. 
Shields  v.  Pettee  (4  N.  Y.  122),  41. 
Shincller  v.  Houston  (1  N.  Y.  261),  358, 

370,  376,  378,  382,  383. 
Shinn  v.  Bodine  (60  Pa.  St.  182),  1145. 
Shipman  v.  Seymour  (40  Mich.  274), 

923,  924. 
Shippen  v.    Bowen  (122  U.  S.  575), 

1235, 1810. 
Shippey  v.   Eastwood  (9  Ala.   198), 

1045. 
Shipps  v.  Atkinson  (8  Ind.  App.  505), 
1633. 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Shipway  v.  Broadwood  (1  Q.  B.  369), 

1397. 
Shipton  v.  Casson  (5  B.  &  C.  386), 

11C2. 
Shirk  v.  Shultz  (113  Ind.  571),  118, 

120. 
Shirley  v.  Shirley  (7  Blackf.  452),  449. 
Shisler  v.   Baxter  (109  Pa.  St.  443), 

1314, 1355. 
Shone  v.  Lucas  (3  Dowling  &  Ry. 

218),  1540. 
Shordan  v.  Kyler  (87  Ind.  38),  1235. 
Short  v.  Ston-  (8  Q.  B.  358),  1097. 
Shnmpton  v.  Warmaok  (72  Miss.  208), 

1159. 
Shrock  v.  Crowl  (83  Ind.  243),  97. 
Shropshire  v.  Barns  (46  Ala.  188),  97. 
Shuenfeldt  v.  Junkermann  (20  Fed. 

R.  357),  739. 
Shufeldt  v.  Pease  (16  Wis.  659),  924. 
Shumway  v.  Rutter  (7  Pick.  56),  981, 

987. 
Shumway  v.  Rutter  (8  Pick.  443),  483, 

963. 
Shupe  v.   Collender  (56  Conn.  489), 

1395. 1807. 
Shurman  v.   Gassett  (4  Gilm.  521), 

1043. 
Shurtleff  v.   Willard  (19  Pick.  202), 

964. 
Shurts  v.  Howell  (30  N.  J.  Eq.  418), 

971. 
Sibley  v.  Hulbert  (15  Gray,  509),  932. 
Sibley  v.  Tie  (88  111.  287),  1189. 
Sidensparker  v.  Sidensparker  (52  Me. 

481),  955. 
Siegel  v.   Brooke  (25  111.  App.   207), 

1304. 
Siegel,  Cooper  &  Co.  v.  Eaton  Co.  (165 

111.  550),  1100. 
Sievewright  v.  Archibald  (17  Q.  B. 

103),  234,  468. 
Siffken  v.  Wray  (6  East,  371),  1535, 
•    1591. 

Sigerson  v.  Harker  (15  Mo.  101),  491. 
Sigerson  v.  Kahman  (39  Mo.  206),  1485. 


TABLE    OF    CASES   CITED. 


clxxxi 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  $§  798-1850. 


Silberman  v.  Clark  (96  N.  Y.  522),  741. 
Silberman  v.' Monroe  (104  Mich.  352), 

924. 
Sillers  v.  Lester  (48  Miss.  513),  202. 
Silsbury  v.  McCoon  (3  N.  Y.  379),  639. 
Silsby  v.  Boston  &   Albany  R.  Co. 

(176  Mass.  158),  547,  552,  557. 
Silsby  Mfg.  Co.  v.  Town  of  Chico  (24 

Fed.  R.  893),  668. 
Silver  Bow  Mining  Co.  v.  Lowry  (6 

Mont.  288),  564,  578. 
Silvernail  v.  Cole  (12  Barb.  685),  199. 
Simmonds  v.  Humble  (13  C.  B.  258), 

373. 
Simmons  v.  Green  (35  Ohio  St.  104), 

1121,  1129. 
Simmons  v.  Law  (3  Keyes,  219),  1264. 
Simmons  v.  Swift  (5  B.  &  C.  862),  281, 

515,  1119,  1129,  1485,  1670. 
Simmons  Hardware  Co.  v.  Mullen  (33 

Minn.  195),  356,  365. 
Simms  v.  McKee  (25  Iowa,  341),  649. 
Simms  v.  Norris  (5  Ala.  42),  126. 
Simon  v.  Johnson  (105  Ala.  344),  1447, 

1448. 
Simon  v.  Motivos  (3  Burr.  1921),  461. 
Simons  v.  Busby  (119  Ind.  13),  970. 
Simpson  v.  Alexander  (35  Kan.  225), 

1786. 
Simpson  v.  Commonwealth  (89  Ky. 

412),  451,  455. 
Simpson  v.  Crippin  (L.  R.  8  Q.  B.  14), 

1141,  1145,  1148. 
Simpson  v.  Eggington  (10  Exch.  845), 

1466. 
Simpson  v.  McKay  (12  Ired.  141),  1270. 
Simpson  v.  Nicholls  (3  M.  &  W.  240), 

1057,  1058. 
Simpson  v.  Pegram(108  N.  C.  407),  50. 
Simpson  v.  Petapsco  Guano  Co.  (99 

Ga.  168),  188. 
Simpson  v.  Potts  (Oliphant's  Law  of 

Horses,  224),  1270. 
Simpson  v.  Shackleford  (49  Ark.  63), 

585,  599. 
Sims  v.  Eiland  (57  Miss.  83),  875. 
m 


Sims  v.   Everhardt  (102  U.  S.  300), 

108. 
Sims  v.  James  (62  Ga.  260),  599. 
Sims  v.  Marryatt  (17  Q.  B.  281),  1301. 
Sinclair  v.  Hathaway  (57  Mich.  60), 

1344,  1356,  1357. 
Sinclair  v.  Healy  (40  Pa.  St.  417),  923. 
Sinclair  v.  Wheeler  (69  N.  H.  538). 

603. 
Singer  v.  Schilling  (74  Wis.  369),  924. 
Singer  Mfg.  Co.  v.  Bullard  (62  N.  H. 

129),  585. 
Singer  Mfg.  Co.  v.  Cole  (4  Lea,  439), 

49,  569. 
Singer  Mfg.  Co.  v.  Graham  (8  Oreg. 

17),  569,  599. 
Singer  Mfg.  Co.  v.  Gray  (121  N.  C. 

163),  569. 
Singer  Mfg.  Co.  v.  Nash  (70  Vt.  434), 

603,  604 
Singer  Mfg.  Co.  v.  Smith  (40  S.  C.  529), 

571,  578. 
Singer  Mfg.  Co.  v.  Treadway  (4  111. 

App.  57),  629. 
Singer  Sew.  M.  Co.  v.  Hoi  comb  (40 

Iowa,  33),  599. 
Singerly  v.  Thayer  (108  Pa.  St.  291), 

664,  665,  667. 
Sisson  v.  Hibbard  (75  N.  Y  542),  645. 
Sisson  v.  Hill  (18  R.  I.  212),  919. 
Skeels  v.  Phillips  (54  III.  309),  996. 
Skiff  v.  Johnson  (57  N.  H.  475),  1019, 

1027. 
Skinner  v.  Gunn  (9  Port.  305),  1281, 

1294 
Skinner  v.  Maxwell  (66  N.  C.  45),  120. 
Skinner  v.  Michigan  Hoop  Co.  (119 

Mich.  467).  902,  915. 
Skinner  v.  Tirrell  (159  Mass.  474),  185. 
Skipper  v.  Stokes  (42  Ala.  570),  200, 

202. 
Slack  v.  Collins  (145  Ind.  569),  1482. 
Slater  v.  Smith  (117  Mass.  96),  437. 
Slaughter  v.  Green  (1  Rand.  3),  21,  22. 
Slaughter's  Adm'r  v.  Gerson  (13  Wall. 

379),  879,  880. 


clxxxii 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol. 

Slaymaker  v.  Irwin  (4  Whart.  369), 

220. 
Slayton  v.  Barry  (175  Mass.  513),  119. 
Slayton  v.  McDonald  (73  Me.  50),  16. 
Sledge  v.  Obenchain  (58  Miss.  670), 

976. 
Sleeper  v.  Chapman   (121  Mass.  404), 

150,  151. 
Sleeper  v.  Davis  (64  N.  H.  59),  148, 

90D,  921. 
Sleeper  v.  Pollard  (28  Vt.  709),  964. 
Sleeper  v.  Wood  (60  Fed.  R.  888),  1242. 
Sloan  v.  Baird  (162  N.  Y.  327),  1736 
Sloan  v.  Hudson  (119  Ala.  27),  159. 
Sloane  v.  Sniffer  (156  Pa.  St.  59),  915, 

918. 
Slocum  v.  Seymour  (36  N.  J.  L.  138), 

336. 
Sloggy  v.  Crescent  Creamery  Co.  (72 

Minn.  316),  1832. 
Slowey  v.  McMurray  (27   Mo.    113), 

689. 
Slubey  v.  Heyward  (2  H.  Bl.  504). 

1499. 
Smack  v.  Cathedral  (31  N.  Y.  App. 

Div.  559),  1408. 
Small  v.  Quincy  (4  Me.  497),  446, 1170. 
Small  v.  Stevens  (65  N.  H.  209),  1380. 
Smalley  v.  Hamblin  (170  Mass.  380), 

307. 
Smalley  v.  Hendrickson  (29  N.  J.  L. 

371),  502,  661,  1402. 
Smart  v.  Batchelder  (57  N.  H.  140), 

521. 
Smedley  v.  Felt  (41  Iowa,  588),  139. 
Smeed  v.  Foord  (1  El.  &  El.  602),  1773, 

1792. 
Smethurst  v.  Woolston  (5  "W.  &  S. 

106),  685. 
Smidt  v.  Tiden  (L.  R.  9  Q.  B.  446),  199. 
Smiley  v.   Barker   (83   Fed.   R.  684), 

1134,  1850. 
Smiley  v.  Barker  (55  U.  S.  App.  125), 

10*9. 
Smilie  v.  Hobbs  (64  N.  H.  75),  1288. 
Smith's  Appeal  (69  Pa.  St.  474),  449. 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Smith  v.  Acker  (23  Wend.  653),  960. 
Smith  v.  Andrews  (8  Ired.  3),  933. 
Smith  v.  Arnold  (5  Mason,  414),  438, 

461,  462. 
Smith  v.  Arnold  (106  Mass.  269),  1050. 
Smith  v.  Barber   (153  Ind.  322),  619, 

1377. 
Smith  v.  Barker  (102  Ala.  679),  1539, 

1541. 
Smith  v.  Bean  (15  N.  H.  577),  1053, 

1034. 
Smith  v.  Beattie  (31  N.  Y.  542),  40. 
Smith  v.  Beatty  (2  Ired.  Eq.  456),  64. 
Smith  v.  Benson  (1  Hill,  176),  336. 
Smith  v.  Berry  (18  Me.  122),  1747. 
Smith  v.  Bettger  (68  Ind.  254),  1425. 
Smith  v.  Bickmore    (4    Taunt.    474), 

999. 
Smith  v.  Bolles  (132  U.  S.  125),  1843. 
Smith  v.  Bouvier    (70    Pa.    St.   325), 

1032. 
Smith  v.  Boyer  (29  Neb.  76),  954,  955. 
Smith  v.  Brennan  (62  Mich.  349),  356, 

366. 
Smith   v.    Brittenham   (98   111.    188), 

918. 
Smith  v.  Brown  (3  Hawks,  580),  1420, 
Smith  v.  Bryan  (5  Md.  141),  337. 
Smith  v.  Chadwick  (20  Ch.  Div.  27), 

876. 
Smith  v.  Case  (2  Oreg.  190),  1057. 
Smith  v.  Champney    (50   Iowa,  174), 

904. 
Smith  v.  Chance  (2  B.  &  Aid.  753), 

1187,  1192,  1412. 
Smith  v.  Coolidge  (68  Yt.  516),  1441, 

1442. 
Smith  v.  Colby  (136  Mass.  562),  428. 
Smith  v.  Collins  (94  Ala.  394),  953. 
Smith  v.  Corege  (53  Ark.  295  >,  1332. 
Smith  v.  Countryman  (30  N.  Y.  655), 

899. 
Smith  v.  Clark  (21  Wend.  83),  22. 
Smith  v.  Clews  (105  N.  Y.  283),  160. 
Smith  v.  Clews  (114  N.  Y.  190),  154. 
Smith  v.  Cuff  (6  M.  &  SeL  160),  1000. 


TABLE    OF    CASES    CITED. 


clxxxiii 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Smith  v.  Dennie  (6  Pick.  262),  549,  551, 

552,  1482. 
Smith  v.  De  Vaughn  (82  Ga.  574),  583. 
Smith  v.  Droubay  (20  Utah,  443).  175. 
Smith  v.  Dunlop  (12  111.  184),  1741. 
Smith  v.  Edwards  (156  Mass.  221),  731, 

756. 
Smith  v.  Estey  Organ  Co.  (100  Ga. 

628),  942. 
Smith  v.  Evans  (5  Humph.  70),  109. 
Smith  v.  Evans  (36  S.  C.  69),  386. 
Smith  v.  Field  (5  T.  E.  402),  1591. 
Smith  v.  First  Nat.  Bank  (45  Neb. 

444),  908. 
Smith  v.  Friend  (15Cal.  124),  711. 
Smith  v.  Gillett  (50  III  290),  734, 1124, 

1412. 
Smith  v.  Gilmore  (7  D.  C.  App.  119;, 

019. 
Smith  v.  Gowdy  (8  Allen,  566),  221. 
Smith  v.   Goss  (1  Camp.  282),  1571, 

1577. 
Smith  v.  Greer  (3  Humph.  118),  974. 
Smith  v.  Griffeth  (3  Hill,  337),  208. 
Smith  v.  Gufford  (36  Fla.  481),  592, 643. 
Smith  v.  Hale  (158  Mass.   178),  626, 

677,  816,819,  1191,  1275,  1805. 
Smith  v.  Hall  (19  111.  App.  17),  1459. 
Smith    v.   Hightower  (76  Ga.   629), 

1344 
Smith  v.  Hudson  (6  B.  &  S.  431),  355, 

369,  374,  393,  1496. 
Smith  v.  Hudson  (34  L.  J.  Q.  B.  145). 

1181. 
Smith  v.  Hughes  (L.  R.  6  Q.  B.  597), 

846,  847,  848,  849,  869. 
Smith   v.  James  (53  Ark.   135),  175, 

1455. 
Smith  v.  Johnson  (71  Mo.  382),  1462. 
Smith  v.  Jordan  (13  Minn.  264),  1097. 
Smith  v.  Justice  (13  Wis.  600),  1235, 

1237. 
Smith  v.  Kidd  (68  N.  Y.  130),  1453, 

1459. 
Smith  v.   Lamberts  (7  Gratt.    138), 

1455. 


Smith  v.  Leighton  (38  Kan.  544),  321. 
Smith  v.  Lewis  (40  Ind.  98),  913, 1161. 
Smith  v.  Lime  Co.  (57  Ohio  St.  518), 

1738. 
Smith  v.  Love  (64  N.  C.  439),  1311. 
Smith  v.  Lozo  (42  Mich.  6),  588,  605. 
Smith  v.  Lynes  (5  N.  Y.  41),  549,  552, 

890,  891. 
Smith  v.  Mariner  (5  Wis.  551),  877. 
Smith  v.  Mawhood  (14  M.  &  W.  452), 

1051. 
Smith  v.  Mayer  (3  Colo.  207),  1395. 
Smith  v.  Mayo  (9  Mass.  62),  121. 
Smith  v.  Morse  (20  La.  Ann.  220),  264. 
Smith  v.  McCall(lMcCord,  220),  1319. 
Smith  v.  McLean  (24  Iowa,  322),  649. 
Smith  v.  McNair  (19  Kan.  330),  1332. 
Smith  v.  Neale  (2  C.  B.  67),  834,  1301. 
Smith  v.  Nevitt  (Walk.  370),  1413. 
Smith  v.  Newland  (9  Hun,  553),  628. 
Smith  v.  N.  Y.  Cent.  R.  Co.  (4  Keyes, 

180),  305. 
Smith  v.  O'Bryan  (11  L.  T.  346),  1270. 
Smith  v.  Perry  (29  N.  J.  L.  74),  175. 
Smith  v.  Pettee  (70  N.   Y.    13),   654, 

1077,  1629,  1642,  1643. 
Smith  v.  Pierce  (110  Mass.  35),  626. 
Smith  v.  Rail  Mill  Co.  (50  Ark.  31), 

1391. 
Smith  v.  Reid  (134  N.  Y.  568),  972. 
Smith  v.  Richards  (13  Pet.  26),  881. 
Smith  v.  Selz  (114  Ind.  229),  952. 
Smith  v.  Shell  (82  Mo.  215),  440. 
Smith  v.  Sloan  (37  Wis.  285),  143. 
Smith  v.  Smith  (2  Hill,  351),  1417. 
Smith  v.  Smith  (25  Wend.  405),  1417. 
Smith  v.  Smith  (30  Vt.  139),  914. 
Smith  v.  Smith  (2  Johns.  235),  1440. 
Smith  v.  Smith  (21  Pa.  St.  367),  904. 
Smith  v.  Smith  (91  Mich.  7),  28. 
Smith  v.  Sparkman  (55 Miss.  649), 508. 
Smith  v.  Stern  (17  Pa.  St.  360),  963. 
Smith  v.  Stoller  (26  Wis.   671),   367, 

369,  373. 
Smith  v.  Surman  (5  Barn.  &  Aid.  613), 

300. 


clxxxiv 


TABLE   OF   CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Smith  v.  Surman  (9  B.  &  C-  561),  305, 

313,  337,  427. 
Smith  v.  Swarthout    (15    Wis.    550), 

1265. 
Smith  v.  Tilton  (10  Me.  350),  565. 
Smith  v.  Tracy  (36  N.  Y.  79),  1281. 
Smith  v.  Wellborn  (75  Ga.  799),  953. 
Smith  v.  Wheeler  (7  Oreg.  49),  1187, 

1696. 
Smith  v.  Williams  (1    Murph.    426), 

1255. 
Smith,  K.  &  F.  Co.  v.  Smith  (166  Pa. 

St.  563),  892,  899. 
Smither  v.  Calvert  (44  Ind.  242),  872. 
Smock  v.  Dade  (5  Rand.  639),  1455. 
Smock  v.  Smock   (37  Mo.    App.   56), 

344. 
Smoot's  Case  (15  Wall.  36),  1090. 
Smout  v.  Ilbery  (10  Mees.  &  W.  1), 

1223. 
Sneathen  v.  Grubbs  (88  Pa.  St.  147), 

733,  1184. 
Snee  v.  Prescott  (1  Atk.  245),  1526. 
Snelgrove  v.  Bruce  (16  Up.  Can.  C. 

P.  561),  1316. 
Snelling  v.  Arbunkle  (104  Ga.  362),  46, 

49. 
Snider  v.  Thrall  (56  Wis.  674),  379. 
Snodgrass  v.  Broadwell  (2  Litt.  353), 

207. 
Snoddy  v.  American  Nat.  Bank  (88 

Tenn.  573),  1031,  1039. 
Snody  v.  Shier  (88  Mich.  304),  682, 

1385,  1386. 
Snow  v.  Shomacker  Mfg.  Co.  (69  Ala. 

Ill),  1240,  1241,  1265,  1344. 
Snow  v.  Warner  (10  Mete.  132),  363, 

365. 
Snowden  v.  Warder  (3  Rawle,  101), 

1230. 
Snowden  v.  Waterman  (105  Ga.  384), 

1346,  1825. 
Snyder  v.  Hegand  ( —  Ky.  — ),  942. 
Snyder  v.  Partridge  (138  111.  173),  957. 
Snyder  v.  Tibbals  (32  Iowa,  447),  714. 
Snyder  v.  Vaux  (2  Rawle,  427),  639. 


Soames  v.  Spencer  (1  Dowl.  &  R.  32), 

453. 
Soles  v.  Hickman  (20  Pa.  St.  180),  438, 

439. 
Solomon  v.  Bushnell  (11   Oreg.  277), 

1507. 
Solomon  v.  Dreschler  (4  Minn.  278), 

1051. 
Solomon  v.  Hathaway  (126  Mass.  482), 

546,  549,  628. 
Solomon  v.  King  (63  N.  J.  L.  39),  365. 
Solomon  v.  Webster  (4  Col.  353),  229. 
Solomons  v.  Chesley  (58  N.  H.  238), 

1516. 
Soltau  v.  Gerdau  (119  N.  Y.  380),  149, 

154,  169. 
Somerby  v.  Buntin  (19  Am.  R.  459), 

330,  331,  1729. 
Somers  v.  Richards  (46  Vt.  170),  937. 
Somes  v.  Shipping  Co.  (El.,  Bl.  &  El. 

353),  1475. 
Sondheim  v.  Gilbert  (117  Ind.  71),  203, 

1031,  1039. 
Sonneboom  v.  Moore  (105  Ga.  497), 

1456. 
Soper  v.  Creighton  (93  Me.  564),  1134. 
Soper  v.  Fry  (37  Mich.  236),  95,  97. 
Souhegan  Nat.  Bank  v.  Wallace  (61 

N.  H.  24),  999. 
Sousely  v.  Burns  (10  Bush,  87),  734, 

1124,  1130. 
South  Australian  Ins.  Co.  v.  Randell 

(L.  R.  3  P.  C.  101),  20. 
South  Bend  Pulley  Co.  v.  Caldwell 

( —  Ky.  — ),  1275,  1381,  1814. 
South  Baltimore  Co.  v.  Muhlbach  (69 

Md.  395),  333. 
Southbridge  Savings  Bank  v.  Exeter 

Mach.  Works  (127  Mass.  542),  646. 
Southern  v.  Howe  (2  Roll.  5),  1272. 
Southern  Cotton  Oil  Co.  v.  Heflin  (99 

Fed.  R.  339),  1701. 
Southern  Development  Co.  v.  Silva 

(125  U.  S.  247),  879. 
Southern  Life  Ins.  Co.  v.  Cole  (4  Fla. 

359),  331. 


TABLE    OF    CASES    CITED. 


clxxxv 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  IT,  §§  708-1850. 


Southern  Music  House  v.  Dusenbury 

(27  S.  C.  464),  571,  603. 
Southern  Music  House  v.   Hornsby 

(45  S.  C.  Ill),  571. 
Southwestern  Freight  C#t.  v.  Stand- 
ard (44  Mo.  71),  499,  516,  542,  1121, 
1407,  1474,  1485,  1516. 
Southwick  v.  Smith  (29  Me.  228),  678. 
Southworth  v.  Bennett  (58  N.  Y.  659), 

1502. 
Southworth  v.  Smith  (7  Cush.  391), 

1417. 
Sowers  v.  Parker  (59  Kan.  12),  937. 
Spalding    v.    Archibald    (52     Mich. 

365),  336. 
Spalding  v.  Ruding  (6  Beavan,  376), 

1568. 
Sparks  v.  Marshall  (2  Bing.    N.   C. 

761),  732. 
Sparks  v.  Messick  (65  N.  C.440).  1307. 
Sparling  v.  Marks  (86  111.  125),  816, 

820,  1805. 
Spaulding  v.  Adams  (63  Iowa,  437), 

953. 
Spaulding  v.  Austin  (2  Vt.  555),  1193. 
Spaulding  v.  Hanscom  (67  N.  H.  401), 

932. 
Spear  v.  Bach  (82  Wis.  192),  331,  386, 

391,  392. 
Spear  v.  Crawfish  (14  Wend.  23),  142. 
Speier  v.  Opfer  (73  Mich.  35),  138. 
Speirs  v.  Halstead  (74  N.  C.  620),  1790. 
Spence  v.  Insurance  Co.  (L.  R  3  C. 

P.  427),  642. 
Spencer  v.  Cone  (1  Met.  283),  307,324. 
Spencer  v.  Hale  (30  Vt.  314),  365,  733. 
Spencer  v.  St.  Clair  (57  N.  H.  9),  915. 
Speyer  v.  Baker  (59  Ohio  St.  11),  603, 

629. 
Spickler  v.  Marsh  (36  Md.  222),  682. 
Spira  v.  Hornthall  (77  Ala.  137),  924. 
Spirett  v.  Willows  (3  De  G.,  J.  &  S. 

292),  974. 
Spooner  v.  Cummings  (151  Mass.  313), 

602. 
Sprague  v.  Blake  (20  Wend.  61),  401. 


Sprague  v.  Kemp  (74  Minn.  465),  901. 
Sprague  v.  Rooney  (82  Mo.  493),  1022. 
Sprague  v.   Warren    (26   Neb.   326), 

1031,  1032. 
Spring  Co.  v.  Knowlton  (103  U.  S.  49), 

999. 
Springer  v.  Drosch  (32  Ind.  486),  947. 
Springer  v.   Hubbard  (82  Me.  299), 

1436. 
Springer  v.   Kreeger  (3  Colo.  App. 

487),  964. 
Springfield  v.  Green  (7   Baxt.  301), 

1435. 
Springfield,  etc.  Ass'n  v.  Roll  (137  111. 

205),  947. 
Springfield  Engine  Co.  v.  Kennedy  (7 

Ind.  App.  502),  1384 
Springfield  Milling  Co.  v.  Barnard  (49 

U.  S.  App.  438),  1844 
Springwell  v.   Allen    (2   East,   448), 

1311,  1795. 
Sprott  v.  United  States  (87  U.  S.  459), 

1024. 
Spurgeon  v.  McElwain  (6  Ohio,  442), 

1023. 

Spurr  v.  Benedict  (99  Mass.  463),  275. 

St.  Anthony  Lumber  Co.  v.  Bardwell- 

Robinson  Co.  (60  Minn.  199),  1817, 

1844. 

Stack  v.  Cavanaugh  (67. N.  H.  149), 

109, 119. 
Stacy  v.  Foss  (19  Me.  335).  999. 
Stacy  v.  Kemp  (97  Mass.  166),  1255. 
Stadfield  v.  Huntsman  (92  Pa.  St.  53), 

580,  600. 
Stafford  v.  Roof  (9  Cow.  626),  98,  106, 

107,  112. 
Stafford  v.  Walter  (67  111.  83).  736, 

748,  1181. 
Standard  Furn.  Co.  v.  Van  Alstine 

(22  Wash.  670),  1004,  1013,  1022. 
Standard    Oil    Co.    v.   Meyer    Bros. 

Drug  Co.  (74  Mo.  App.  446),  923. 
Standard  Underground  Cable  Co.  v. 
Denver    Consol.   Electric    Co.    (76 
Fed.  R.  422),  1247. 


clxxxvi 


TABLE   OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Staner  v.  Rogers  (3  Wash.  603),  1384. 
Stanford  v.  McGill  (6  N.  Dak.  536), 

1089,  1090. 
Stange  v.  Wilson  (17  Mich.  342),  1129, 

1133, 1255. 
Stanley  v.  Gaylord  (1  Cush.  536),  154. 
Stannard  v.  Burns  (63  Vt.  244),  84. 
Stanton  v.  Allen  (5  Denio,  434).  208. 
Stanton  v.  Eager  (16  Pick.  467),  736, 

740.  775,  1566,  1606,  1612. 
Stanton  v.  French  (83  CaL  194),  1454. 
Staples  v.  O'Neal  (64  Minn.  27),  264. 
Stapleton,  Ex  parte  (10  Ch.  Div.  586), 

1094. 
Staples  v.  Wellington  (53  Me.  453),  67. 
Star  Glass  Co.  v.  Longley  (64  Ga.  576), 

738. 
Starace  v.  Rossi  (69  Vt.  303),  1028. 
Stark  v.  Thompson  (3  T.  B.  Mon.  296), 

1466. 
Starkweather  v.  Benjamin  (32  Mich. 

305),  863,  875. 
Starr  v.  Torrey  (22  N.  J.  L.  190),  1402. 
Starr  v.  Stevenson  (91  Iowa,  684),  892, 

901,  923. 
Startup  v.  Macdonald  (6  Man.  &  Gr. 

593),  1137,  1188. 
State  v.  Bank  (45  Mo.  528),  191. 
State  v.  Basserman  (54  Conn.  88),  1029. 
State  v.   Boston  Club  (45  La.  Ann. 

585),  55. 
State  v.  Brady  (100  Iowa,  191),  905. 
State  v.  Carl-  (43  Ark.  353),  739,  740, 

793,  1029. 
State  v.  Colby  (92  Iowa,  463),  1028. 
State  v.  Durant  (53   Mo.  App.  493), 

1199. 
State  v.  Easton  Club  (73  Md.  97),  55. 
State  v.  Fox  (79  Md.  514),  935. 
State  v.  Fuller  (5  Ired.  L.  26),  483. 
State  v.  Gregory  (47  Conn.  276),  1052. 
State  v.  Hays  (52  Mo.  578),  191. 
State  v.  Hoshaw  (98  Mo.  358),  446. 
State  v.  Horacek  (41  Kan.  87),  55. 
State  v.  Howard  (88  N.  C.  650),  108 
114,  132. 


State  v.  Hughes  (22  W.  Va.  743),  740. 
State  v.  Intoxicating  Liquors  (61  Me. 

520),  809,  964. 
State  v.  Intoxicating  Liquors  (73  Me. 

278),  740,  793. 
State  v.  Lockyear  (95  N.  C.  633),  55. 
State  v.  Mason  (112  Mo.  374),  953, 954. 
State  v.  Mercer  (32  Iowa,  405!,  55. 
State  v.  Neis  (108  N.  C.  787),  55. 
State  v.  O'Neil  (58  Vt.  140),  739,  740, 

777,  794,  1029. 
State  v.  Peters  (91  Me.  31),  736,  739, 

740,  777.  793,  1181. 
State  v.  Plaisted  (43  N.  H.  413),  96, 

106,  108,  114. 
State  v.  Pottmeyer  (33  Ind.  402),  346. 
State  v.  Railroad  Co.    (34  La.    Ann. 

947),  1303. 
State  v.  Rieger  (59  Minn.  151),  28. 
State  v.  St.  Louis  Club  (125  Mo.  308), 

55. 
State  v.  Wingfield  (115  Mo.  428),  736, 

739,  740,  777,  794. 
State  Bank  v.  McCoy  (69  Pa.  St.  204), 

88. 
Staunton  v.  Wood  (16  Q.  B.  638),  1134. 
Staver  Mfg.  Co.  v.  Coe  (49  111.  App. 

426),  901. 
Stead  v.  Dawber  (10  A.  &  E.  57),  447. 
Stearns  v.  Gage  (79  N.  Y.  102),  953. 
Stearns  v.  Hall  (9  Cush.  31),  474. 
Stearns  v.  Washburn  (7   Gray,  187), 

1199. 
Steaubli  v.  Bank  (11  Wash.  426),  702. 
Stebbins  v.  Leowolf   (3   Cush.   137), 

1135. 
Stebbins  v.  Peck  (8  Gray,  553),  1057. 
Steel  v.  Fife  (48  Iowa,  99).  432. 
Steel  Works  v.  Dewey  (37  Ohio  St. 

-242),  708,  1187. 
Steele  v.  Aspy  (128  Ind.  367),  564. 
Steele  v.  Curie  (4  Dana.  381),  1013. 
Steele-Smith  Grocery  Co.  v.  Potthast 

( —  Iowa,  — ),  188. 
Steel  wagon  v.  Jeffries  (44  Pa.  St.  407), 
964,  966. 


TABLE   OF   CASES    CITED. 


clxxxvii 


References  are  to  sections:  Vol.  I,  §§  1-797;  YoL  n,  §§  798-1850. 


Steen  v.  Harris  (81  Ga.  681).  603. 
Stees  v.  Leonard  (20  Minn.  494),  1103. 
Steigleman  v.  Jeffries  (1  Serg.  &  R 

477),  1844. 
Steinbach  v.  Hill  (25  Mich.  78),  863, 

875. 
Steiner  v.  Ray  (84  Ala.  93),  1050. 
Steinhart  v.  Mills  (94  Cal.  362),  1423. 
Steinhart  v.  National  Bank  (94  CaL 

362),  1433. 
Steinmeyer  v.  Siebert  (190  Pa.  St.  471), 

1718,  1727. 
Stenwood  v.  Trefethen  (84  Me.  295), 

1450. 
Stephens  v.  Adair  (82  Tex.  214),  947. 
Stephens  v.  Gifford  (137  Pa.  St.  219), 

960,  964,  981,  982,  1118,  1186. 
Stephens  v.  Tucker  (55  Ga.  543),  202. 
Stephenson  v.  Cady  (117  Mass.  6),  1148. 
Stephenson  v.  Hart  (4  Bing.  476),  887. 
Stephenson  v.  Little  (10  Mich.  433), 

642. 
Sterling  v.  Baldwin  (42  Vt.  306),  336, 

964. 
Sterling  v.  Warden  (51  N.  H.  217),  334. 
Sterry  v.  Arden  (1  Johns.  Ch.  261),  955. 
Stetson  v.  Briggs  (114  CaL  511),  1455. 
Stevens  v.  Adams  (45  Me.  611),  1125. 
Stevens  v.  Austin  (1  Mete.  557),  915, 

917. 
Stevens  v.  Boston  &  Wor.  R.  Co.  (8 

Gray,  262),  740,  775. 
Stevens  v.  Brennan  (79  N.  Y.  234),  924. 
Stevens  v.  Cunningham  (3  Allen,  491), 

169,  685. 
Stevens  v.  Eno  (10  Barb.  95),  714. 
Stevens  v.  Fuller  (8  N.  H.  463),  935. 
Stevens  v.  Hertzler  (109  Ala,  423),  682, 

1382. 
Stevens  v.  Irwin  (15  Cal.  503),  964,  963, 

966. 
Stevens  v.  Ludlum  (46  Minn.    160), 

878,  895. 
Stevens  v.  Works  (81  Ind.  445),  973. 
Stevenson  v.  Burgin  (49  Pa.  St.  36), 
1158. 


Stevenson  v.  Marble  (84  Fed.  R.  23), 

931. 
Stevenson  v.  McLean  (5  Q.  B.  Div.  346), 

230,  252,  257,  258. 
Stevenson  v.  Smith  (28  Cal.  103),  1780. 
Stevenson  v.  State  (65  Ind.  409),  16. 
Stewart  v.  Conner  (9  Ala.  813),  17. 
Stewart  v.  Dougherty  (3  Dana,  479), 

908. 
Stewart  v.  Emerson  (52  N.  H.  301), 

901,  1411. 
Stewart  v.  Munford  (91  111.  58),  170. 
Stewart  v.  Nelson  (79  Mo.  522),  963, 

964 
Stewart  Paper  Co.  v.  Rau  (92  Ga.  511), 

1433. 
Stewart  v.  Stearns  (63  N.  H.  99),  1841. 
Stewart  v.  Stone  (127  N.  Y.  500),  1100. 
Stewart  v.  Thayer  (168  Mass.  519), 

1004, 1053. 
Stewart  v.  Woodward  (50  Vt.   78), 

1455. 
Stewart  v.  Wyoming  Ranch  Co.  (128 

U.  S.  383),  868,  935. 
Stickney  v.  Jordan  (47  Minn.  262), 

1843. 
Stiles  v.  McClellan  (6  Colo.  89),  263. 
Stiles  v.  We.-t  (1  Sid.  109),  84. 
Stiles  v.  White  (11  Mete.  356),  1843. 
Stillman  v.  Fleniken  (58  Iowa,  450), 

646. 
Stillman  v.  Harvey  (47  Conn.  27),  145. 
Stilwell  v.  Mutual  Life  Ins.  Co.  (72 

N.  Y.  385),  175. 
Stimson  v.  Helps  (9  Colo.  33),  1223. 
Stimson  v.  Wrigley  (86  N.  Y.  332), 

951. 
Stinson  v.  Clark  (6  Allen,  340),  965. 
Stix  v.  Keith  (85  Ala.  465),  953. 
St.  John  v.  Palmer  (5  Hill,  591),  1796. 
St.  Joze  Indians,  The  (1  Wheat.  208), 

788. 
St.  Louis  Fair  Ass'n  v.  Carmody  (151 

Mo.  566),  1023. 
St.  Louis  Refrig.  Co.  v.  Vinton,  etc. 
Co.  (79  Iowa,  239),  1255. 


clxxxviii 


TABLE    OF   CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


St.  Louis,  etc.  Ry.  Co.  v.  Biggs  (50 

Ark.  169),  592. 
St.  Louis  Ry.  Co.  v.  Higgins  (44  Ark. 

293),  108,  109. 
St.  Paul  Mill  Co.  v.  Great  Western 
Despatch  Co.  (27  Fed.  R.  434),  779. 
Stock  v.  Boston  (149  Mass.  416),  1773. 
Stock  v.  Ingles  (12  Q.  B.  Div.  564),  796. 
Stockdale  v.  Dun  lop  (6  M.  &  W.  224), 

652. 
Stockdale  v.  Onwhyn  (7  D.  &  R.  625), 

1007. 
Stocken  v.  Collin  (7  Mees.  &  W.  515), 

247. 
Stockham  v.  Stockham  (32  Md.  196), 

251. 
Stock  well  v.  Baird  (15  Del.  420),  360, 

385. 
Stoddard  v.  Ham  (129  Mass.  383),  268, 

269,  887. 
Stokes  v.  Baars  (18  Fla.  656),  1148. 
Stokes  v.  Jones  (18  Ala.  734),  150. 
Stokes  v.  McKay  (147  N.  Y.  223),  1089, 

1090,  1193,  1708. 
Stone  v.  Browning  (51  N.  Y.  211),  358, 

359,  367. 
Stone  v.  Browning  (60  N.  Y.  598),  358. 
Stone  v.  Browning  (68  N.  Y.  598),  426, 

438. 
Stone  v.  Dennison  (13  Pick.  1),  122, 

123,  124. 
Stone  v.   Denny   (4  Mete.   151),   875, 

1237. 
Stone  v.  Harmon  (31  Minn.  512),  245. 
Stone  v.  Myers  (9  Minn.  303),  970, 974. 
Stone  v.  Peacock  (35  Mo.  385),  964. 
Stone  v.  Perry  (60  Me.  48),  543,  552, 

628. 
Stone  v.  Robie  (66  Vt.  245),  874. 
Stone  v.  Spencer  (77  Mo.  356),  952. 
Stone  v.  Swift  (4  Pick.  389),  1194. 
Stone  v.  Waite  (88  Ala.  599),  601,  634, 

1100. 
Stong  v.  Lane  (66  Minn.  94),  272. 
Stoolfire  v.  Royse  (71  111.  223),  1121. 
Stoops  v.  Smith  (100  Mass.  63),  1327. 


Storm  v.  Smith  (43  Miss.  497),  1302, 

1307. 
Storrs  v.  Emerson  (72  Iowa,  390),1272, 

1273. 
Story  v.  Salomon  (71  N.  Y.  420),  1034. 
Storz  v.  Finkelstein  (46  Neb.  577),  996. 
Stose  v.  Heissler  (120  111.  433),  212. 
Stott  v.  Franey  (20  Oreg.  410),  200. 
Stoveld  v.  Hughes  (14  East,  308),  381, 

1503. 
Stowe  v.  Taft  (58  N.  H.  445),  960. 
Stowell  v.  Eldred  (39  Wis.  614),  455. 
Stowell  v.  Robinson  (3  Bing.  N.  C. 

928),  447. 
Strahorn  v.  Union  Stock  Yard  Co. 

(43  111.  424),  752. 
Strain  v.  Mfg.  Co.  (80  Tex.  622),  1389. 
Stranahan  Co.  v.  Coit  (55  Ohio  St. 

398),  1822. 
Strand  v.  Griffith  (38  C.  C.  A.  444), 

934,  1841. 
Strang  v.  Holmes  (7  Cow.  224),  1420. 
Strang  v.  Hirst  (61  Me.  1),  1424. 

Stratton  v.  Burr  ( Cal.  — ),  964. 

Straub  v.  Screven  (19  S.  C.  445),  571. 
Straus  v.  Minzesheimer  (78  I1L  492), 

499,  516,  518. 
Straus  v.  Ross  (25  Ind.  300),  508. 
Straus  v.  Rothan  (102  Mo.. 201),  1482. 
Straus  v.  Wessel  (30  Ohio  St.  211), 

740,  775,  779. 
Strauss  v.  Hensey  (7  D.  C.  App.  289), 

1332. 
Strauss  Saddlery  Co.  v.  Kingman  (42 

Mo.  App.  208),  677. 
Strawn  v.  Cogswell  (28  111.  457),  1393, 

1831. 
Streeper   v.  Eckart  (2  Whart.  302), 

167,  960. 
Street  v.  Blay  (2  B.  &  Ad.  456),  1805. 
Street  v.  Chapman  (29  Ind.  142),  1818. 
Strickland  v.  Graybill  (97  Va.  602), 

937. 
Strickland  v.  Turner  (7  Ex.  208),  199. 
Strickland  v.  Willis  (43  S.  W.  R.  602), 
896,  902. 


TABLE    OF    CASES    CITED. 


clxxxix 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Strodder  v.  Southern  Granite  Co.  (99 

Ga.  595),  74. 
Strong  v.  Insurance  Co.  (62  Mo.  295), 

1834 
Strong  v.  Dodds  (47  Vt.  348),  365, 369. 
Strong  v.  Foote  (42  Conn.  203),  130, 

132. 
Strong  v.  King  (35  I1L  1),  1433. 
Strong  v.  Lawrence   (58  Iowa,  55), 

957. 
Strong  v.  Strong  (9  Cush.  560),  212. 
Strother  v.  Butler  (17  Ala.  733),  17. 
Stroud  v.  Austin  (1  C.  &  A.  119),  1770. 
Stroud  v.  Pierce  (6  Allen,  413),  1237. 
Strubbee  v.  Railway  Co.  (78  Ky.  481), 

639. 
Strutt  v.  Smith  (1  C.  M.  &  R.  312), 

912,  1411. 
Stuart  v.  Burcham  (50    Neb*    823), 

1448,  1455. 
Stuart  v.  Pennis  (91  Va.  688),  1718, 

1731. 
Stuart  v.  Wilkins  (1  Doug.  21),  932, 

1810. 
Stubbs  v.  Lund  (7  Mass.  453),  1548, 

1577. 
Stubly  v.  Beachboard  (68  Mich.  401), 

915. 
Stucky  v.  Clyburn  (Cheves'  L.  186), 

1273. 
Studer  v.  Bleisten  (115  N.  Y.  316),  880, 

1272,  1391,  1392,  1395. 
Stumph  v.  Bruner  (89  Ind.  556),  973. 
Sturges  v.  Keith  (57  111.  451),  1786. 
Sturgis  v.  Corp  (13  Ves.  190),  135. 
Sturgis  v.  Warren  (11  Vt.  433),  645. 
Sturm  v.  Boker  (150  U.  S.  312),  20, 

46,  49. 
Sturtevant  v.  Ballard  (9  Johns.  337), 

960. 
Sturtevant  v.  Orser  (24  N.  Y.  538), 

1548. 
Sturtevant  v.  Starin  (19  Wis.  285),  184. 
Stutz  v.  Coal  Co.  (131  Pa.  St.  267),  660, 

6G9,  1384. 
Suan  v.  Caffe  (122  N.  Y.  308),  138. 


Suit  v.  Woodhall  (113  Mass.  391),  733, 

741,  1184. 
Sullivan  v.  Flynn  (22  D.  C.  396),  72. 
Sullivan  v.  Hergan  (17  R.  1. 109),  1003. 
Sullivan  v.  Sullivan  (70  Mich.   583), 

261. 
Summer  v.  Gray  (4  Ark.  467),  1795. 
Summers  v.  Hibbard  (153  111.  102), 

1103. 
Summers  v.  Mills  (21  Tex.  77),  217. 
Summers  v.  Wilson  (2  Cold.  469),  107. 
Summerson  v.  Hicks  (134  Pa.  St.  566), 

32. 
Sumner  v.  Hamlet  (12  Pick.  76),  524. 
Sumner  v.  Jones  (24   Vt.   317),  1057. 
Sumner  v.  McFarlan  (15  Kan.   600), 

599. 
Sumner  v.  Saunders  (51  Mo.  89),  1445, 

1446. 
Sumner  v.  Woods  (53  Ala.  94),  583, 

599. 
Sumner  v.  Woods  (67  Ala.  139),  569, 

599. 
Stunners  v.  Vaughn  (35  Ind.  323),  1247. 
Sumner's  Appeal  (16  Pa.  St.  169),  955. 
Sun    Pub.    Co.   v.   Minnesota    Type 

Foundry  Co.   (22  Oreg.   49),   1138, 

1375. 
Sunny  South    Lumber   Co.   v.   Nei- 

meyer  Lumber  Co.  (63  Ark.  268), 

588,  606. 
Surles  v.  Pipkin  (69  N.  C.  513),  85. 
Susquehanna  Fertilizer  Co.  v.  White 

(66  Md.  444),  1431. 
Sussdorf    v.   Smidt  (55    N.   Y.  319). 

207. 
Sutherland  v.  Allhusen  (14  L.  T.  666), 

1130. 
Sutherland  v.  Brace  (34  U.  S.  App. 

638),  485. 
Sutherland  v.  Bruce  (73  Fed.  R.  624), 

492. 
Sutherland   v.  Pratt   (11   M    &    W. 

296),  1480. 
Sutton  v.  Crosly  (54  Barb.  80),  1255. 
Sutro  v.  Pettit  (74  CaL  332),  191. 


cxc 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-707;  Vol.  IT,  §§  798-1850. 


Suydam  v.  Clark  (2  Sandf.  133),  199, 

228,  469. 
Swallow   v.  Emery  (111   Mass.  355), 

634,  635. 
Swan   v.   Scott  (11   Serg.  &  R.  155), 

947. 
Swarm   v.   Swarm   (21  Fed.  R.  299), 

1052.  1058. 
Swanzey  v.  Parker  (50  Pa.  St.  441), 

1303. 
Swartwout  v.  Evans  (37  111.  442),  189. 
Swasey  v.  Vanderheyden  (10  Johns. 

33),  124. 
Swayne  v.  Waldo  (73  Iowa,  749),  1810. 
Sweeney  v.  Coe  (12  Colo.  485),  964. 
Sweeney  v.  Owsley  (14  B.  Mon.  332), 

492,  493. 
Sweeney  v.  United  States  (109  U.  S. 

618),  673. 
Sweet  v.  Harding  (19  Vt.  587),  1137. 
Sweet  v.  Pym  (1  East,  4),  1529. 
Sweet  v.  Shumway  (102  Mass.  365), 

1213,  1337,  1340. 
Swett  v.  Colgate  (20  Johns.  196),  1235, 

1311,  1334. 
Swift  v.  Bennett  (10  Cush.  436),  128, 

132. 
Swift  v.  Rounds  (19  R.  L  527),  901. 
Swift  v.  Swift  (36  Ala.  147).  688. 
Swift  v.  Thompson  (9  Conn.  63),  960. 
Switzer  v.  Pinconning  Mfg.  Co.  (59 

Mich.  488),  1235. 
Sydnor  v.  Gee  (4  Leigh,  535),  963. 
Sydnor  v.  Roberts  (13  Tex.  598),  977. 
Sykes  v.  Dixon  (9  Ad.  &  El.  693),  226. 
Sykes  v.  Giles  (5  M.  &  W.  645),  1455. 
Symms  v.  Benner  (31  Neb.  593),  918. 
Symns  v.  Schotten  (35  Kan.  310),  1579. 
Syracuse  Knitting  Co.  v.  Blanchard 

(69  N.  H.  447),  893,  901,  902. 
Table  Mount,  etc.  Co.  v.  Stranahan 

(20  Cal.  198),  347. 
Tabor  v.   Peters  (74  Ala.   90),   1245, 

1273. 
Tacoma  v.  Tacoma  L.  &  W.  Co.  (16 

Wash.  288),  877. 


Tacoma  Coal  Co.  v.  Bradley  (2  Wash. 

600),   1335,   1344,   1393,   1395,  1811, 

1814,  1844. 
Taft  v.  Pike  (14  Vt.  405),  109. 
Taft  v.  Travis  (136  Mass.  95),  207. 
Taggart  v.  Stanbery  (2  McLean,  543), 

1281. 
Tahoe  Ice  Co.  v.  Union  Ice  Co.  (109 

Cal.  242),  1690,  1704,  1709. 
Talbot  Paving  Co.  v.  Gorman  (103 

Mich.  403),  1344,  1350, 1391,  1392. 
Talboys  v.  Boston  (46  Minn.  144),  175, 

1449,  1451. 
Talcott   v.   Henderson   (31  Ohio  St. 

162),  906. 
Tallman  v.  Franklin  (14  N.  Y.  584), 

426. 
Tally  v.  Tally  (2  Dev.  &  B.  Eq.  385), 

84. 
Talmadge  v.   Lane  (41  N.  Y.  Supp. 

413),  345.' 
Talmadge  v.  Oliver  (14  S.  C.  522),  571. 
Talmage  v.  Bierhause  (103  Ind.  270), 

1281,  1282,  1284. 
Tamm  v.  Lavalle  (92  111.  263),  191. 
Tamplin  v.  James  (L.  R.  15  Ch.  Div. 

221),  278. 
Tamvaco  v.  Lucas  (1  El.  &  El.  581), 

1158. 
Tancred  v.  Steel  Co.  (15  App.  Cas. 

125),  1169. 
Tanner  v.  Scovell  (14  M.  &  W.  28), 

1499,  1602. 
Tanner  Engine  Co.  v.  Hall  (89  Ala. 

628),  599,  619. 
Tansley  v.  Turner  (2  Scott,  238),  515, 

518. 
Tansley  v.  Turner  (2  Bing.  N.  C.  151), 

1495. 
Tappenden  v.  Randall  (2  Bos.  &  P. 

467),  999. 
Tarbox  v.  Gotzian  (20  Minn.  139),  263. 
Tarling  v.  Baxter  (6  Barn.  &  Cress. 

360),  483,  484,  725. 
Tarrabochia  v.  Corlett  (12  Moo.  P.  Cv 

C.  199),  861. 


TABLE    OF    CASES    CITED. 


CXC1 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Tasker  v.  Bartlett  (5  Cush.  359),  1417. 
Tasker  v.  Crane  Co.  (55  Fed.  E.  449), 

1377. 
Tatro  v.  Brower  (118  Mich.  615),  1822. 
Tatum  v.  Kelley  (25  Ark.  209),  1013, 

1024. 
Tatum  v.  Mohr  (21  Ark.  349),  1270. 
Tayloe  v.  Merchants'  F.  Ins.  Co.  (9 

How.  390),  257,  258. 
Taylor,  In  re  (192  Pa.  St.  304),  203, 

1032,  1034. 
Taylor  v.  Ash  ton  (11  M.  &  W.  401), 

876,  1223. 
Taylor  v.  Bailey   (169    III   181),   175, 

1033. 
Taylor  v.  Boardman  (25  Vt.  581),  649. 
Taylor  v.  Bowers  (1  Q.  B.  Div.291),999. 
Taylor  v.  Bradley  (39  N.  Y.  129  ,  17; 0. 
Taylor  v.  Bullen  1 5  Ex.  779),  1333. 
Taylor  v.  Caldwell  (3  Best  &  Smith, 

826),  1100. 
Taylor  v.  Coenen  (L.  R.  1  Ch.  Div. 

636),  973,  974. 
Taylor  v.  Cole  (111   Mass.   363),  733, 

1177,  1395. 
Taylor  v.  Conner  (41  Miss.  722),  1425. 
Taylor  v.  Finley  (48  Vt.  78),  606,  610. 
Taylor  v.  Gardiner  (8  Manitoba.  310), 

1314. 
Taylor  v.  Hilary  (1  C.  M.  &  R.  741), 

806. 
Taylor  v.  Insurance  Co.  (9  How.  390), 

247. 
Taylor  v.  Jones  (L.  R  1  Com.  P.  Div. 

8?  .242. 
Taylor  v.  Meads  (4  De  Gex,  J.  &  S. 

597),  135. 
Taylor  v.  Mississippi  Mills  (47   Ark. 

247),  896,  905. 
Taylor  v.  Mueller  (30  Minn.  343),  356, 

361,  365,  369. 
Taylor  v.  Neville  (3  Atk.  384),  1726. 
Taylor  v.  Patrick  (1  Bibb,  168),  87. 
Taylor  v.  Rennie  (35  Barb.  272),  251. 
Taylor  v.  Robinson  (14  Cal.  396).  1455. 
Taylor  v.  Smith  (2  Q.  B.  65),  427. 


Taylor  v.  Thurber  (68  111.  App.  114), 

485. 
Taylor  v.  Victoria  Co-operative  Store 

Co.  (26  Nova  Sco.  223),  1181. 
Teachout  v.  Van  Hoesen  (76  Iowa, 

113),  937. 
Tedder  v.  Odom  (2  Heisk.  68),  1025. 
Tegler  v.   Shipman  (33    Iowa,    194), 

739. 
Telegraph  Co.  v.  Railroad  Co.  (86  111. 

246),  428. 
Telford  v.  Adams  (6  Watts,  429),  947. 
Tempest  v.  Fitzgerald  (3  B.  &  Aid. 

680),  385,  386, 1489. 
Tempest  v.  Kilner  (3  Com.  B.  249), 

329,  1748. 
Temple  v.  Smith  (13  Neb.  513 »,  953. 
Tenney  v.  Foote  (95  111.  99),  1034, 1036. 
Tenney  v.  Mulvaney  (9   Oreg.  405), 

1265. 
Tennent-Stribling  Shoe  Co.  v.  Rudy 

(53  Mo.  App.  196),  967. 
Tennessee  Club  v.  Dwyer  (11  La.  Ann. 

452),  55. 
Tennessee    River    Compress    Co.   v. 

Leeds  (97  Tenn.  574),  1346,  1347. 
Terhune  v.  Coker  (107  Ga.  352),  936. 
Terney  v.  Doten  (70   Cal.  399),  359, 

386. 
Terre  Haute  Brewing  Co.  v.  Hartman 

(19  Ind.  App.  596),  1027. 
Terry  v.  Birmingham  Nat.  Bank  (93 

Ala.  599).  1786. 
Terry  v.  Bissell  (26  Conn.  23),  838, 

1849. 
Terry  v.  Cole  (80  Va.  701),  9. 
Terry  v.  Wheeler  (25  N.  Y.  520),  488, 

489,  508,  528,  1177. 
Terwilliger  v.  Great  West.  Tel.  Co. 

(59  111.  249).  878. 
Tewkesbury  v.  Bennett  (31  Iowa,  83), 

1235,  1245,  1246. 
Texada  v.  Beaman  (6  La,  Ann.  84), 

14G2. 
Textor  v.  Hutchings    (62  Md.  150), 

1092. 


CXC11 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol. 

Thacher  v.  Dinsmore  (5  Mass.  299), 

1424. 
Thacher  v.  Moors  (134  Mass.  156),  169, 

887. 
Thacker  v.  Hardy  (L.  R.  4  Q.  B.  Div. 

685),  1031. 
Thames,  etc.  Co.  v.  Beville  (100  Ind. 

309),  428. 
Thayer  v.  Burchard  (99  Mass.  508), 

263. 
Thayer  v.  Davis  (75  Wis.  205),  488, 492, 

493. 
Thayer  v.   Insurance  Co.  (10  Pick. 

326).  247. 
Thayer  v.  Kelley  (28  Vt.  19),  200. 
Thayer  v.  Luce  (22  Ohio  St.  62),  426. 
Thayer  v.  Manley  (73  N.  Y.  305),  56. 
Thayer  v.  Rock  (13  Wend.  53),  335. 
Thayer  v.  Turner  (8  Mete.  550),  914. 
Thaxter  v.  Foster  (153  Mass.  151),  924. 
Thedford  v.  McClintock  (47  Ala.  647), 

1024. 
Theilen  v.  Rath  (80  Wis.  263),  397. 
Theiss  v.  Theiss  (166  Pa.  St.  9),  1739. 
Theo.  Harnm  Brewing  Co.  v.  Young 

(76  Minn.  246),  1029. 
Theus  v.  Dugger  (93  Tenn.  41),  138. 
Thew  v.  Miller  (73  Iowa,  742),  1786. 
Third  Nat.  Bank  v.  Armstrong  (25 

Minn.  530),  620. 
Thirlby  v.  Rainbow  (93  Mich.  164), 

599,  630. 
Thol  v.  Henderson  (8  Q.  B.  Div.  457), 

1762,  1770. 
Thomas  v.  Blackman    (1    ColL   312), 

228. 
Thomas  v.  City  of  Richmond  (79  U. 

S.  349),  1024. 
Thomas  v.  Kerr  (3  Bush,  619),  461. 
Thomas  v.  Knowles  (128  Mass.  22),  271. 
Thomas  v.  Parsons  (87  Me.  203),  588, 

597,  603. 
Thomas  v.  Simpson  (80  N.  C.  4),  1344. 
Thomas  v.  State  (37  Miss.  353),  714. 
Thomas  v.  Winchester  (6  N.  Y.  397), 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Thomas  Mfg.  Co.  v.  Drew  (69  Minn. 

69),  603. 
Thomas,  etc.  Mfg.  Co.  v.  Wabash,  etc. 

Ry.  Co.  (62  Wis.  642),  1790. 
Thomason   v.  Lewis  (103   Ala.   426), 

619. 
Thome  v.  Colton  (27  Iowa,  425),  642. 
Thompson  v.  Adams  (93  Pa.  St.  55), 

197. 
Thompson  v.  Alger  (12  Mete.  428),  420, 

1695. 
Thompson  v.  Bait.  &  O.  R.  Co.   (28 

Md.  396),  1485,  1514 
Thompson  v.  Bank  (82  N.  Y.  1),  1461. 
Thompson  v.  Bertrand  (23  Ark.  730), 

1272. 
Thompson  v.  Botts  (8  Mo.  710),  1273. 
Thompson  v.  Dougherty  (12  Serg.  & 

R  448),  975. 
Thompson  v.   Douglass  (35  W.  Va. 

337),  243,  1374. 
Thompson  v.  Elliott  (73  111.  221),  1459. 
Thompson  v.  Gardiner  (1  C.  P.  D.  777), 

468. 
Thompson  v.  Harvey    (86  Ala.   519), 

816,  1272,  1273,  1274,  1805. 
Thompson  v.  Howard  (31  Mich.  309), 

909. 
Thompson  v.  Johnson  (55  Minn.  515), 

955. 
Thompson  v.  Knickerbocker  Ins.  Co. 

(104  U.  S.  252),  1073. 
Thompson  v.  Lay  (4  Pick.  48),  121. 
Thompson  v.  Libby    (34  Minn.  374), 

446,  447,  1254,  1256,  1314,  1327, 1391, 

1392. 
Thompson    v.   McCullough  (31    Mo. 

224),  838,  1849. 
Thompson  v.  Paret   (94  Pa.  St.  275), 

600. 
Thompson  v.  Peck  (115  Ind.  512),  906, 

914,  915,  1424. 
Thompson  v.  Phoenix  Ins.  Co.  (75  Me. 

55),  872. 
Thompson  v.  Richardson    Drug    Co. 

(33  Neb.  714),  955. 


TABLE   OF   CASES    CITED. 


CXC111 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Thompson  v.  Thompson  (4  Cush.  127), 

1540. 
Thompson  v.  Thompson  (19  Me.  244), 

970. 
Thompson  v.  Vinton  (121  Mass.  139), 

646. 
Thompson  v.  Waters  (25  Mich.  223), 

142. 
Thompson  v.  Wedge    (50  Wis.   642), 

1481,  1482. 
Thompson  v.  Wilhite    (81    111.    356), 

964,  1199. 

Thompson  v.  Williams  (58  N.  H.  240), 

998,  1053,  1054. 
Thompson  v.  Yeck  (21  111.  73),  960. 
Thompson  Mfg.  Co.  v.Smith  (67  X.  H. 

409),  967. 
Thorns  v.  Dingley  (70  Me.  100),  1817, 

1823,  1826. 
Thomson-Houston    Electric    Co.    v. 

Brush-Swan  Co.  (31  Fed.  R.  536), 

682. 
Thomson-Houston  Co.  v.  Palmer  (52 

Minn.  174),  1432. 
Thoreson  v.  Minneapolis  Harvester 

Works  (29  Minn.  341),  1835. 
Thorndike  v.  Bath  (114  Mass.  116),  964, 

965,  991. 

Thorndike  v.  Locke  (98  Mass.  340), 

685,  1695. 
Thorne  v.  First  Nat.  Bank  (37  Ohio  St. 

254),  960. 
Thorne  v.  McVeagh  (75  111.  81),  1244. 
Thorne  v.  Prentiss  (83  111.  99),  881. 
Thornton  v.  Charles  (9  M.  &  W.  802), 

468. 
Thornton  v.  Davenport  (1  Scam.  296), 

960. 
Thornton  v.  Kempster  (5  Taunt.  786), 

272,  449,  468. 
Thornton  v.  Lawther    (169  111.   228), 

1459. 
Thornton  v.  Meux(M.  &  M.  43),  468. 
Thornton  v.  Thompson  (4  Gratt.  121), 

1817. 
Thornton  v.  Wynn  (25  U.  S.  183),  1805. 


Thorpe  v.  Hanscon  (64  Minn.  201),  72. 
Thorpe  v.  Fowler  (57  Iowa,  541),  554. 
Thrall  v.  Newell  (19  Vt.  202),  835, 1303. 
Thrall  v.  Wright  (38  Vt.  494),  131, 132. 
Thrash  v.  Starbuck  (145  Ind.  673),  77. 
Throughgood's  Case  (2  Co.  R.  9),  266. 
Thurber  v.  Ryan  (12  Kan.  453),  1169. 
Thuret  v.  Jenkins  (7  Mart.  318),  649. 
Thurnell  v.  Balbirnie  (2  Mees.  &  W. 

786),  213,  674. 
Thurston  v.  Blanchard  (22  Pick.  18), 

914,  915,  919,  928. 
Thurston  v.  Spratt  (52  Me.  202),  1302, 

1798. 
Tibbetts  v.  Garrish  (25  N.  H.  41),  103, 

121. 
Tibbetts  v.  Home  (65  N.  H.  242),  646. 
Tice  v.  Gallup  (2  Hun,  446),  1281, 1294. 
Ticknor  v.  McClelland  (84  111.  471), 

960,  964,  1198. 
Tifft  v.  Horton  (53  N.  Y.  377),  647. 
Tigress,  The  (32  L.  Jour.  Adm.  97), 

1611. 
Tilden  v.  Minor  (45  Vt.  196),  1194. 
Tilden  v.  Rosenthal  (41  111.  386),  1168. 
Tilley  v.  Cook  County  (103  U.  S.  155), 

228. 
Tilton  Safe  Co.  v.  Tisdale  (48  Vt.  83), 

1349. 
Tillinghast  v.  Holbrook  (7  R.  I.  230), 

97. 
Tillman  v.  Heller  (78  Tex.  597),  952. 
Tillock  v.  Webb  (56  Me.  100),  1057. 
Timmis  v.  Wade  (5  Ind.  App.  139),  935. 
Timrod  v.  Schoolbred  (1  Bay,  324), 

1319. 
Tinn  v.  Hoffman  (29  Law  Times  R., 

N.  S.,  273),  233. 
Tipton  v.  Feitner  (20  N.  Y.  425),  350. 
Tipton  v.  Triplett  (1  Mete.  570),  1795. 
Tisdale  v.  Buckmore  (33  Me.  461),  914. 
Tisdale  v.  Harris  (20  Pick.  9),  331. 
Titley  v.  Enterprise  Stone  Co.  (127  111. 

457),  1254,  1391. 
Titus  v.  Glens  Falls  Ins.  Co.  (81  N.  Y. 

419),  1072. 


CXC1V 


TA.BLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850 


Titlow  v.  Titlow  (59  Pa.  St.  216),  70. 
Tobey  v.  Price  (75  111.  645),  1079. 
Tobias  v.  Lissberger  (105  N.  Y.  404), 

653,  1134, 1139. 
Todd  v.  Diamond  State  Iron  Co.  (8 

Houst.  372),  1718,  1727,  1733. 
Todd  v.  Gamble  (148  N.  Y.  382),  1703. 
Tognini  v.  Kyle  (17  Nev.  209),  964. 
Tolerton   &    Stetson    Co.    v.    Ar.glo- 

California  Bank    ( Iowa,   — ), 

1816. 
Tomblin    v.   Callen   (69  Iowa,   229), 

1031. 
Tomkinson   v.    Balkis    Consolidated 

Co.  (2  Q.  B.  614),  876. 
Tomkinson  v.  Staight  (17  C.  B.  697), 

395. 
Tomlinson  v.  Morris  (12  Out.  R.  311), 

1223. 
Tomlinson  v.  Roberts  (25  Conn.  477), 

599. 
Tompkins  v.  Compton  (93  Ga.  520), 

996,  1040. 
Tompkins  v.  Haas  (2  Pa.  St.  74),  351. 
Tompkins  v.  Sheehan  (58  N.  Y.  617), 

399,  454. 
Toms  v.  Wilson  (4  B.  &  S.  442),  1416. 
Toney  v.  McGehee  (38  Ark.  427),  973, 

974. 
Tony  v.  Zell  (149  Pa.  St.  458),  1242. 
Tootle  v.  First  Nat.  Bank  (34  Neb. 

863),  918. 
Topliff  v.  McKendree  (88  Mich.  148), 

234. 
Torkelson  v.  Jorgenson  (28  Minn.  383), 

859,  1225. 
Torrey  v.  Corliss  (33  Me.  333),  736. 
Totten  v.  Burhans  (91  Mich.  499),  875. 
Tourret  v.  Cripps  (48  L.  J.  Ch.  507), 

451. 
Towell  v.  Gatewood  (2  Scam.  22),  1242, 

1247. 
Towell  v.  Pence  (47  Ind.  304),  109. 
Towers  v.  Osborne  (1  Strange,  506), 

295,  296,  297,  299,  305. 
Towle  v.  Dresser  (73  Me.  252),  106. 


Towne  v.  Davis  (66  N.  H.  396),  493, 

499,  502,  541,  546,  547. 
Townend  v.  Drakeford  (1  Car.  &  K. 

20),  468. 
Townley  v.  Crump  (4  A.  &  E.  58), 

1485,  1487,  1513,  1515. 
Townsend's  Case  (L.  R.  13  Eq.  148), 

247. 
Townsend  v.  Cowles(31  Ala.  428),  873. 
Townsend  v.  Felthousen  (156  N.  Y. 

618),  937. 
Townsend  v.  Fisher  (2  Hilton,  47),  263. 
Townsend  v.  Hargraves  (118  Mass. 

325),  387,  395,  402,  403,  493,  542, 1193. 
Tracy  v.  Talmage  (14  N.  Y.  162),  1013, 

1015,  1019. 
Traders'  Nat,  Bank  of  Ft.  Worth  v. 

Day  (37  Tex.  101),  964. 
Trainer  v.  Morrison  (78  Me.  160),  1449, 

1450. 
Trainer  v.  Trumbull  (141  Mass.  527), 

127,  128,  129. 
Trapp  v.  New  Bird  sail  Co.  (99  Wis. 

458),  1812. 
Travers  v.  Leopold  (124  111.  431),  40. 
Tread  well  v.  Reynolds  (39  Conn.  31), 

360. 
Treadwell  v.  Salisbury  Mfg.  Co.   (7 

Gray,  393),  141. 
Treadwell  v.  State  (99  Ga.  779),  896. 
Treadwell  v.  Whittier  (80  Cal.  575), 

1780. 
Treasurer  v.  Commercial  Coal  M.  Co. 

(23  Cal.  370),  1727. 
Treat  v.  Hiles  (68  Wis.  344),  347. 
Tredway  v.  Riley  (32  Neb.  495),  1043. 
Tregelles  v.  Sewell  (7  H.  &  N.  574), 

740,  741,  775,  1180. 
Tregent  v.  Maybee  (54  Mich.  226),  909. 
Treusch  v.  Ottenburg  (4  C.  C.  A.  629), 

953. 
Trevor  v.  Wood  (36  N.  Y.  307),  240, 
'    247,  429. 
Trice  v.  Cockran  (8  Gratt.  442),  940, 

1810. 
Trigg  v.  Clay  (88  Va.  330),  1742,  1766. 


TABLE   OF   CASES    CITED. 


cxcv 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  708-1850. 


Trimble  v.  Stillwell  (4  E.  D.  Smith, 

512),  207. 
Trimuiier  v.  Thomson  (10  S.  C.  164), 

1260. 
Tripp  v.  Armitage  (4  M.  &  W.  687), 

761. 
Tripp  v.  Bishop  (56  Pa.  St.  424),  449. 
Tripp  v.  Forsaith  Maoh.  Co.  (69  N.  H. 

233),  1650,  1690. 
Tripp  v.  Hasceig  (20  Mich.  254).  342. 
Tripp  Boot  &  Shoe  Co.  v.  Martin  (45 

Kan.  765),  1451. 
Triplett  v.  Mansur  &  Tebbetts  Imple- 
ment Co.  ( —  Ark.  — ),  586,  599. 
Troewert  v.  Decker  (51  Wis.  46),  1054. 
Trotman  v.  Wood  (16  C.  B.  479),  834. 
Trotter  v.  Heckscher  (40  N.  J.  Eq. 

612),  1148. 
Trounstine  v.  Sellers  (35  Kan.  447', 

244,  247. 
Trueman  v.  Hurst  (1  T.  R.  40),  1214. 
Trueman  v.  Loder  (11  Ad.  &  EL  589), 

455,  468,  1264. 
Trull  v.    Hammond  (71   Minn.  172), 

1453,  1455. 
Trumbull  v.  O'Hara  (71  Conn.  172), 

■1805. 
Truxton  v.  Tait  (1  Pennew.  483),  924. 
Tucker  v.  Cady  (25  111.  App.  578),  207. 
Tucker  v.  Humphrey  (4  Bing.  516), 

1530,  1577. 
Tucker  v.  Lawrence  (56  Vt.  467),  253. 
Tucker  v.  Moreland  (1  Am.  Lead.  Cas. 

260),  109. 
Tucker  v.    Mowrey  (12    Mich.  378), 

1053,  1054,  1057. 
Tucker  v.  West  (29  Ark.  386),  1054, 

1057. 
Tucker  v.  White  (125  Mass.  344),  875. 
Tucker  v.  Woods  (12  Johns.  190),  226. 
Tuckerman  v.  Hinkley  (9  Allen,  452), 

1057. 
Tufts  v.  Bennett  (163  Mass.  398).  1690. 
Tufts  v.  Brace  (103  Wis.  341),  620. 
Tufts  v.  D'Arcarnbal  (85  Mich.  185), 

595,  622,  629. 


Tufts  v.  Grewer  (83  Me.  412),  1665. 
Tufts  v.  Griffin  (107  N.  C.  47),  635. 
Tufts  v.  Lawrence  (77  Tex.  526),  754, 

1701.       . 
Tufts  v.  McClure  (40  Iowa,  317),  1129, 

1134. 
Tufts  v.  Plymouth  Mining   Co.  (14 

Allen,  407),  431. 
Tufts  v.  Stone  (70  Miss.  54),  597. 
Tufts  v.  Sylvester  (79  Me.  213),  1592, 

1594. 
Tufts  v.  Weinfield  (88  Wis.  647).  1702. 
Tufts  v.  Wynne  (45  Mo.  App.  42),  635. 
Tull  v.  David  (45  Mo.  444),  461,  462. 
Tunell  v.  Larson  (39  Minn.  269),  964. 
Tunke  v.  Allen  (54  Neb.  407),  1690. 
Tupper  v.  Cadwell  (12  Mete.  559),  130, 

131,  132. 
Turley  v:  Bates  (2  H.  &  C.  200),  484, 

524,  529. 
Turner  v.  Gaither  (83  N.  C.  357),  102, 

105,  121,  130,  132. 
Turner  v.  Iowa  Nat.  Bank  (2  Wash. 

192),  955. 
Turner  v.  Liverpool  Dock  Trustees 

(6  Ex.  543),  735,  775,  779,  785,  787, 

796. 1548, 1550. 
Turner  v.  Lorrilard  Co.  (100  Ga.  645), 

426,  438, 448. 
Turner  v.  Machine  Co.  (97  Mich.  166), 

660,  1382,1384. 
Turner  v.  Mason  (65  Mich.  662),  310. 
Turner  v.  Moore  (58  Vt.  455),  543. 
Tustin  Fruit  Ass'n  v.  Earl  Fruit  Co. 

(121  Cal.  xviii),  1642. 
Tuteur  v.  Chase  (66  Miss.  476),  952, 953. 
Tuthill  v.  Skidmore  (124  N.  Y.  148), 

1476,  1502,  1513, 1623. 
Tuttle  v.  Bean  (13  Mete.  275),  1080. 
Tuttle  v.  Brown  (4  Gray,  457),  1244, 

1269. 
Tuttle  v.  Holland  (43  Vt.  542),  1027. 
Tuxworth  v.  Moore  (9  Pick.  347),  491, 

788,  964,  1193. 
Tweed  v.  Mills  (1  Com.  PI.  39),  197. 
Twyne's  Case  (3  Coke,  80),  960,  970. 


CXCV1 


TABLE    OF    CASES   CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Tye  v.  Fynmore  (3  Camp.  462),  1321. 
Tyers  v.  Rosedale  Iron  Co.  (L.  R.  10 

Exch.  195),  1151,  1153. 
Tyler  v.  Augusta  (88  Me.  504),  1812. 
Tyler  v.  Carlisle  (79  Me.  210),  999. 
Tyler  v.  Freeman  (3  Cush.  261),  546. 
Tyler  v.  Strong  (21  Barb.  198),  518, 

524. 
Tyre  v.  Causey  (4  Harr.   425),  1242, 

1268. 
Tyson  v.  Post  (108  N.  Y.  217),  645. 
Ubben  v.  Binnian  (182  111.  508),  1037. 
Ueeker  v.  Koehn  (21  Neb.  559),  100. 
Ufforcl  v.  Winchester  (69  Vt,  542),  601. 
Uhler  v.  Sempla  (20  N.  J.  Eq.  288), 

1242. 
Ullman  v.  Kent  (60  111.  271),  1633. 
Umfrid  v.  Brookes    (14  Wash.  675), 

1129. 
Underwood  v.  Caldwell  (102  Ga.  16), 

937,  1391. 
Underwood   v.    Wolf  (131   111.   425), 

1392,  1393,  1395,  1844. 
Unexcelled  Fire  Works  Co.  v.  Polites 

(130   Pa.  St.  536),  1091,  1092,   1674, 

1690,  1701,  1702. 
Union  Hide  &  Leather  Co.  v.  Reissig 

(48  111.  75),  1344,  1352. 
Union  Canal  Co.  v.  Young  (1  Whart. 

410),  924. 
Union    National   Bank  v.   Carr   (15 

Fed.  R.  438),  1034. 
Union  National  Bank  v.  Miller  (106 

N.  C.  347),  244,  251. 
Union    National  Bank  v.   Pray   (44 

Minn.  168),  974. 
Union  Pac.   R.   Co.  v.  Johnson  (45 

Neb.  57),  792. 
Union  Pac.   Ry.  Co.  v.  Smersh   (22 

Neb.  751),  950. 
Union  School  Furn.  Co.  v.  Mason  (3 

S.  Dak.  147),  1455. 
Union  Stock  Yard  Co.  v.  Mallory  (157 

III.  554),  491,  908. 
Union  Stock  Yards  v.  Western  Land 

Co.  (59  Fed.  R.  49),  20. 


United  Society  v.  Brooks  (145  Mass. 

410),  336. 
United  States  v.  Behan  (110  U.  S.  338), 

1713. 
United  States  v.  Cline  (26  Fed.  R. 

515),  740. 
United  States  v.  Peck  (102  U.  S.  64), 

1106. 
United  States  v.  Shriver  (23  Fed.  R. 

134),  740,  794,  1029. 
United  States  v.  Smoot  (21   L.  Ed. 

107),  1090. 
United  States  v.  Speed  (75  U.  S.  77), 

1702. 
United  States  v.  Wilkins  (6  Wheat. 

135),  213. 
United  States  Fire  Alarm  Co.  v.  Big 

Rapids  (78  Mich.  67),  668. 
United  States  School  Furniture  Co. 

v.  Board  of  Education  ( Ky.  — ), 

175. 
Upham  v.  Dodd  (24  Ark.  545),  714. 
Upham  v.  Richey  (163  111.  530),  39. 
Upson  v.  Holmes  (51  Conn.  500),  498, 

527,  529. 
Upton    v.   Sturbridge   Cotton  Mills 

(111  Mass.  446),  549,  553,  740. 
Upton  v.  Suffolk  Mills  (11  Cush.  586), 

1281, 1290. 
Upton  v.  Tribilcock  (91  U.  S.  45),  872. 
Upton  Mfg.  Co.  v.  Huiske  (69  Iowa, 

557),  816,  818,  819,  1384,  1805. 
Usher  v.  Hazeltine  (5  Greenl.  471), 

950. 
Utica  Ins.  Co.  v.  Kip  (8  Cow.  20),  999. 
Utley  v.  Donaldson  (94  U.  S.  29),  217, 

234,  1303. 
Vail  v.  Reynolds  (118  N.  Y.  297),  1843. 
Vail  v.  Strong  (10  Vt.  457),  16,  1810. 
Vail  v.  Winterstein    (94    Mich.   230), 

138. 
Valerius  v.  Hockspiere  (87  Iowa,  332), 

1255. 
Valle  v.  Cerre  (36  Mo.  575),  51,  752. 
Valley  Distilling  Co.  v.  Atkins  (50 

Ark.  289),  900. 


TABLE    OF   CASES    CITED. 


CXCV11 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Valley  Iron  Works  v.  Grand  Rapids 

F.  Mill  (85  Wis.  274),  1387. 
Valpy  v.  Gibson  (4  C.  B.  837),  206, 438, 

1559. 
Valpy  v.  Oakeley  (16  Q.  B.  941),  1513, 

1515,  1690,  1737. 
Vance  v.  Schroyer  (79  Ind.  380),  914. 
Vannerson  v.  Cheatham  (41  S.  C.  327), 

138. 
Van  Allen  v.  Francis  (123  Cal.  474), 

564,  566,  632. 
Van   Bracklin   v.  Fonda  (12  Johns. 

468),  1357. 
Van  Brocklen  v.  Smeallie  (140  N.  Y. 

70),  1618,  1623,  1624,  1633, 1637, 1643. 

1682. 
Van  Brunt  v.  Pike  (4  Gill,  270),  381, 

964. 
Van   Casteel  v.  Booker  (2  Ex.  691), 

735,  774, 775, 779,  787, 796, 1547, 1550. 
Vandegrift  v.  Covvles,  etc.  Co.  (161 

N.  Y.  435),  1106. 
Vandenbergh  v.  Spooner  (L.  R.  1  Ex. 

316),  430,  434. 
Vanderbilt  v.  Central  R.  R.  Co.  (43 

N.  J.  Eq.  669),  363. 
Vanderbilt  v.  Eagle  Iron  Works  (25 

Wend.  665),  1161. 
Vanderhost  v.  MacTaggart  (1  Brev. 

269),  1320. 
Vanderkarr  v.    Thomson  (19  Mich. 

82),  342. 
Van  Deusen  v.  Sweet  (51  N.  Y.  378), 

69,  72,  77. 
Van  Duzor  v.  Allen  (90  111.  499),  546, 

600. 
Van   Epps  v.  Harrison  (5  Hill,  63), 

937,  940. 
Van  Eps  v.  Schenectady  (12  Johns. 

436),  351. 
Van    Hoesen  v.  Cameron  (54  Mich. 

609),  1264. 
Van   Hoozer  v.  Cory  (34  Barb.  12), 

200. 
Van  Hoven  v.  Irish  (10  Fed.  R.  13), 

1057.  I 

n 


Van  Horn   v.  Rucker  (33  Mo.  391), 

1643,  1677. 
Van  Keuren  v.  Corkins  (4  Hun,  129), 

1453. 
Vanmeter  v.  Estill  (78  Ky.  456),  960. 
Van  meter  v.  Spurrier   (94  Ky.  22), 

1050. 
Van  Patton  v.  Beals  (46  Iowa,  62),  73. 
Van  Raalte  v.  Harrington  (101  Mo. 

602),  953. 
Van  Range  Co.  v.  Allen  ( Miss. 

— ),  599. 
Van  Schoick  v.  Niagara  Ins.  Co.  (68 

N.  Y.  434),  1272. 
Van  Toll  v.  South  Eastern  Ry.  Co. 

(12  C.  B.  75),  845. 
Van  Valkenburgh  v.  Gregg  (45  Neb. 

654),  1124,  1128,  1195,  1217,  1374. 
Van  Winkle  v.  Crowell  (146  U.  S.  42), 

1387. 
Van  Winkle  v.  Wilkins  (81  Ga.  93), 

1251.  1817. 
Van  Wren  v.  Flynn  (34  La.  Ann.  1158), 

627. 
Van  Wyck  v.  Allen  (69  N.  Y.  61),  1237, 

1334,  1354,  1827. 
Van  Wyck  v.  Brasker  (81  N.  Y.  260), 

87,  89. 
Van  Wyck  v.  Seward  (18  Wend.  375), 

971. 
Varley  v.  Whipp  (1  Q.  B.  513),  1209, 

1333. 
Varner  v.  Nobleborough  (2  Greenlf. 

121).  1424. 
Varney  v.  Young  (11  Vt.  258),  186. 
Varnum  v.  Highgate  (65  Vt.  416),  276. 
Vasse  v.  Smith  (6  Cranch,  231),  120. 
Vassar  v.  Camp  (11  N.  Y.  441),  250. 
Vassau  v.  Campbell    (79  M.nn.  167), 

1154. 
Vasser  v.  Buxton  (86  N.  C.  335),  583, 

599. 
Vaughn  v.  Hopson  (10  Bush.  337).  600 
Vaughn  v.  McFayden  (110  Mich.  234), 

606. 
Vawter  v.  Griffin  (40  Ind.  593),  33L 


CXCV111 


TABLE    OF    CASES   CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Veal  v.  Fortson  (57  Tex.  482),  97. 
Veasey    v.    Somerby  (5  Allen,  280), 

1201. 
Velsain  v.  Lewis  (15  Oreg.  549),  156. 
Vennard  v.  McConnell  (11  Allen,  562), 

1540. 
Vent  v.  Osgood  (19  Pick.  572),  109, 

123. 
Vermont  Farm  Mach.  Co.  v.  Batch- 
elder  (68  Vt.  430),  1251. 
Vermont   Marble   Co.  v.  Brow  (109 

Cal.  236),  588,  597. 
Vernon  v.  Keys  (12  East,  632),  900. 
Vescelius  v.  Martin  (11  Colo.  391),  179. 
Vickers  v.  Vickers  (L.  R.  4  Eq.  529), 

213,  674. 
Vickery  v.  McCormick  (117  Lad.  598), 

1737,  1775. 
Victor  Sewing  Mach.  Co.  v.  Heller 

(44  Wis.  265),  169. 
Vierling  v.  Iroquois  Furnace  Co.  (170 

111.  189),  1254. 
Vincent  v.  Cornell  (13  Pick.  294),  573, 

693. 
Vincent  v.  Germond  (11  Johns.  283  , 

402. 
Vincent   v.  Leland  (100  Mass.   432), 

1248,  1395,  1811. 
Vining  v.  Gilbraith  (39  Me.  496),  380, 

981. 
Vinz  v.  Beatty  (61  Wis.  645),  1058. 
Virtue  v.  Beacham  (17  N.  Y.  Supp. 

450),  227. 
Vogel  v.  State  (107  Ind.  374),  1136. 
Vogelsang  v.  Fisher  (128  Mo.   386), 

1565. 
Voltz  v.  Voltz  (75  Ala.  555),  101. 
Voorhees  v.   Earle  (2  Hill,  288),  912, 

1805,  1817. 
Voorhees  v.  Wait  (15  N.  J.  L.  343), 

109. 
Voorhis  v.  Olmstead  (66  N.  Y.  113), 

1516. 
Vorse  v.  Loomis  (86  Iowa,  522),  603. 
Vose  v.  Deane  (7  Mass.  280),  191. 


Vote  v.  Karrick  (13  Colo.  App.  388), 

964. 
Vulicevich  v.  Skinner  (77  Cal.  239), 

344. 
Vusler  v.  Cox  (53  N.  J.  L.  516).  183. 
Wabash   Elevator  Co.   v.    Bank  (23 

Ohio  St.  311),  543,  554,  1407,  1437. 
Wabash  W.  Ry.  Co.  v.  Friedman  (146 

111.  583),  1780. 
Wachsmuth  v.  Martini  (154  111.  515), 

897. 
Wackerbarth  v.  Masson  (3  Camp.  270), 

1130. 
Waddington  v.  Oliver  (5  Bos.  &  Pul. 

61),  1161. 
Wade  v.  Colvert  (2  Mill,  27),  86. 
Wade  v.  Hamilton  (30  Ga.  450),  51, 

736,  752. 
Wade  v.  Moffett  (21  111.  110).  483. 
Wadham  &  Co.  v.  Balfour  (32  Oreg. 

313),  378,  380,  499,  731,  1194. 
Wadleigh  v.  Buckingham  (80  Wis. 

230),  583. 
Wadsworth  v.  Dunnam  (117  Ala.  661), 

1004,  1053,  1054. 
Wadswords  v.  Sharpsteen  (8  N.  Y. 

388),  69. 
Wagar  v.  Detroit,  etc.  R.  Co.  (79  Mich. 

648),  499,  702. 
Wager  v.  Hall  (83  U.  S.  584),  1540. 
Wagner  v.  Breed  (29  Neb.  720),  741. 
Wagner  v.  Hallack  (3  Colo.  176),  740, 

794 
Wagner  v.  Hildebrand  (187   Pa.   St. 

136),  1039. 
Wagner  v.  Nagel  (33  Minn.  348),  183, 

185. 
Wailing  v.  Toll  (9  Johns,  141),  129, 

132. 
Wait  v.  Baker  (2  Ex.  1),  393,  721,  740, 

742,  757,  774,  775,  782.  784,  787,  792, 

796,  1181,  1496. 
Wait  v.  Borne  (123  N.  Y.  592),  1281, 

1293. 
Wait  v.  Maxwell  (5  Pick.  217),  72. 


TABLE    OF    CASES    CITED. 


CXC1X 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  H,  §§  798-1850. 


Waite  v.  McKelvey  (71  Minn.   167), 

365. 
Wake  v.  Griffin  (9  Neb.  47),  960. 
Wake   v.  Harrop  (6   H.  &   N.   768), 

448. 
Wakefield  Rattan  Co.  v.  Tappan  (70 

Hun,  405),  893,  895. 
Wakeman  v.  Dalley  (51 N.  Y.  27),  875. 
Wakeman  v.  Wheeler  &  Wilson  Mfg. 

Co.  (101  N.  Y.  205),  1763,  1765, 1776. 
Walburn-Swenson  Co.  v.  Darrell  (49 

La.  Ann.  1044),  647. 
Walden  v.  Murdock  (23  Cal.  540),  380, 

1132. 
Waldo  v.  Belcher  (11  Ired.  609),  714. 
Waldron  v.  Chase  (37  Me.  414),  702, 

708,  711,  714,  1413. 
Waldron  v.  Haupt  (2  P.  F.  Smith, 

408),  580. 
Walker  v.  Blake  (37  Me.  373),  676. 
Walker  v.  Borland  (21  Mo.  289),  1787. 
Walker  v.  Boulton  (3  U.  C.  Q.  B.  252), 

361. 
Walker  v.  Butterick  (106  Mass.  237), 

49. 
Walker  v.  Collier  (37  111.  362),   723, 

981,  982. 
Walker  v.  Davis  (65  N.  H.  170),  1155. 
Walker  v.  Davis  (1  Gray,  506),  120. 
Walker  v.  Denison  (86  111.  142),  257. 
Walker  v.  Ferrin  (4  Vt.  523),  109. 
Walker  v.   Herring  (21    Gratt.  678), 

461. 
Walker  v.   Hoisington   (43  Vt.  608). 

1270. 
Walker  v.  Hyman  (1  Ont.  App.  345), 

599. 
Walker  v.  Lovell  (28  N.  H.  138),  1004. 
Walker  v.  McConnico  (10  Yerg.  228), 

947. 
Walker  v.  Nusey  (16  M.  &  W.  302), 

404,  416,  420. 
Walker  v.  Pue  (57  Md.  155),  1349. 
Walker  v.  Staples  (5  Allen,  34),  39. 
Walker  v.  Supple  (54  Ga.  178),  331. 
Walker  v.  Tucker  (70  111.  527),  1103. 


Wall  v.  De  Mitkiewicz  (9  D.  C.  App. 

109),  628. 
Wall  v.  Hill  (1  B.  Mon.  290),  77. 
Wall  v.  Schneider  (59  Wis.  352),  203, 

1031,  1032,  1034,  1035. 
Wallace  v.  Hallowell  (56  Minn.  501), 

1843. 
Wallace  v.  Jorman  (2  Stark.  162),  932. 
Wallace  v.  Lark  (12  S.  C.  576),  1013, 

1025. 
Wallace  v.  Mayor  (29  Cal.  181),  191. 
Wallace  v.  Penfield  (106  U.  S.  260), 

973. 
Wallace  v.  Rowley  (91  Ind.  586),  138. 
Waller  v.  Todd  (3  Dana,  503),  960. 
Walley  v.  Montgomery  (3  East,  585), 

772.  775. 
Wallis  v.  Bardwell  (126  Mass.  366), 

132, 
Wallis  Tobacco  Co.  v.   Jackson  (99 

Ala.  460),  188. 
Walradt  v.  Brown  (1  Gilm.  397),  970. 
Walsh  v.  Blakely  (6  Mont.  194),  1542. 
Walsh  v.  Byrnes  (39  Minn.  527),  974. 
Walsh  v.  Morse  (80  Mo.  568),  875. 
Walsh  v.  Myers  (92  Wis.   397),  264, 

1092. 
Walsh  v.  Taylor  (39  Md.  592),  626,  627. 
Walsh  v.  Young  (110  Mass.  396),  109, 

118. 
Walter  v.  Everard  (2  Q.  B.  369),  132. 
Walter  v.   Jones  (148  Pa.   St.   589), 

138. 
Walter  v.  Reed  (34  Neb.  544),  1121, 

1407. 
Walton  v.  Black  (5  Houst.  149),  1127, 

1130. 
Walton  v.  Lowrey  (74  Miss.  484),  336. 
Walton  v.  Tusten  (49  Miss.  569).  947. 
Wanamaker  v.  Yerkes  (70  Pa.  St.  443), 

1485,  1499,  1515. 
Wangler  v.  Franklin  (70  Mo.  659),  599. 
Wanser  v.  Messier  (29  N.  J.  L.  256), 

1795. 
Waples  v.  Overaker  (77  Tex.  7),  1633. 
Warbasse  v.  Card  (74  Iowa,  306),  1254. 


cc 


TABLE   OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Ward  v.  Bourne  (56  Mo.  161),  1424. 
Ward  v.  Evans  (2  Ld.  Raym.  928),  455. 
Ward  v.  Howe  (38  N.  H.  35),  1432. 
Ward  v.  Shaw  (7  Wend.  404),  524, 535. 
Ward  v.  Smith  (7  Wall.  447),  1455. 
Ward  v.  Taylor  (56  111.  494),  748,  774, 

1183. 
Ward  v.  Vosburgh  (31    Fed.   R.  12), 

1031,  1032. 
Ward  v.  Ward  (75  Minn.  269),  1052. 
Ward's  Estate,  In  re  (57  Minn.  377), 

683. 
Wardell  v.  Fosdick  (13  Johns.  325), 

932. 
Wardell  v.   Williams  (62  Mich.  50), 

228,  234,  439,  443. 
Warden  v.  Marshall  (99  Mass.  305), 

1202,  1490. 
Warder,  Bushnell,  etc.  Co.  v.  Home 

( —  Iowa,  — ),  1382. 
Warder  v.  Fisher  (48  Wis.  338),  1395. 
Warder  v.  Hoover  (51  Iowa,  491),  549. 
Warder  v.  Robertson  (75  Iowa,  585), 

1286,  1386. 
Warder  v.  Rublee  (42  Minn.  23),  156. 
Warder  v.  Whitish  (77  Wis.  430),  868, 

881,  934. 
Ware  v.  Jones  (61  Ala.  288),  1013. 
Ware  v.  McCormack    (96    Ky.    139), 

1332. 
Ware  v.  Wheatnall  (2  McCord,  413), 

1794. 
Ware  River  R.  Co.  v.  Vibbard  (114 

Mass.  447),  1474. 
Waring  v.  Ayres  (40  N.  Y.  357),  437. 
Waring  v.  Mason  (18  Wend.  425),  1212, 

1320, 1325,  1327,  1352. 
Warner  v.  Arctic  Ice  Co.  (74  Me.  475), 

1213,  1340. 
Warner  v.  Benjamin  (89  Wis.  290), 

1843. 
Warner  v.  Carlton  (22  III.  415),  966. 
Warner  v.  Johnson   (65    Iowa,    126), 

603. 
Warner  v.  Littlefield  (89  Mich.  329), 

955. 


Warner    v.   Norton   (20    How.   448), 

960. 
Warner  v.  Roth  (2  Wyo.  63),  599. 
Warner  v.  Vallily  (13  R.  I.  483),  919, 

928. 
Warnken  v.  Langdon  Co.  (8  N.  Dak. 

243),  612. 
Warnock  v.  Campbell  (25  N.  J.  Eq. 

485),  87. 
Warren  v.  Chapman  (105  Mass.  187), 

1004. 
Warren  v.  Crane  (50  Mich.  300),  1071. 
Warren  v.  Hodge  (121  Mass.  106),1419. 
Warren  v.  Liddell  (110  Ala.  232),  564, 

646,  647. 
Warren  v.  Milliken  (57  Me.  97),  708. 
Warren  v.  Philadelphia  Coal  Co.  (83 

Pa.  St.  437),  1235. 
Warren  v.  Skinner    (20    Conn.   559), 

1419,  1420. 
Warren  v.  Stoddart   (105  U.  S.  224), 

1755,  1770. 
Warren  v.  Thread  Co.  (134  Mass.  247), 

197. 
Warren  v.  Wheeler  (8  Mete.  97),  446, 

499,  520.  702,  1082,  1131. 
Warren   Chemical  Co.  v.  Holbrook 

(118  N.  Y.  586),  305. 
Warren  &  Durfee  Mfg.  Co.  v.  Wat- 
son (92  Iowa,  759),  1813. 
Warren  Glass  Works  v.  Coal  Co.  (65 

Md.  547),  1311,  1314,  1319. 
Warten  v.  Strane  (82  Ala.  311),  714. 
Wartman  v.  Breed   (117   Mass.    18), 

373,  658,  661. 
Warwick  v.  Slade  (3  Camp.  127),  468. 
Washburn  v.  Cuddihy  (8  Gray,  430), 

1270. 
Washburn  v.  Fletcher  (42  Wis.  152), 

247. 
Washburn  v.  Franklin  (35  Barb.  599), 

1048. 
Washburn   Iron  Co.  v.  Russell  (130 

Mass.  543),  1128,  1189. 
Washington  v.  Johnson  (7  Humph. 

468),  659,  660. 


TABLE    OF    CASES    CITED. 


CC1 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Washington ,  Ice  Co.  v.  Webster  (62 

Me.  341),  228,  234,  355,  1742. 
Washington  Slate  Co.  v.  Burdick  (60 

Minn.  270),  1423. 
Wass  v.  Insurance  Co.  (61  Me.  537), 

1450. 
Wassenboehr  v.  Boulier  (84  Me.  165), 

1029. 
Wassenboehr  v.  Morgan   (168  Mass. 

291),  1027. 
Waterbury  v.  Andrews  (67  Mich.  281), 

878. 
Waterhouse  v.  Citizens'  Bank  (25  La. 

Ann.  77),  1455. 
Waterhouse  v.  Skinner  (2  Bos.  &  P. 

447),  1188. 
Waterman  v.  Clark  (76  111.  428),  1079. 
Waterman  v.  Meigs  (4  Cush.  497),  307, 

437,  438. 
Waters  v.  Cox  (2  111.  App.  129),  649. 
Waters  v.  Riggin  (19  Md.  536),  150. 
Waters  v.  Towers  (8  Ex.  40),  1831. 
Waters  Heater  Co.  v.  Mansfield  (48 

Vt.  378),  682,  1384 
Watertown  S.  C.  Co.  v.  Davis  (5  Del. 

192),  569,  627. 
Watkins  v.  Hodges  (6  H.  &  J.  38), 

1151. 
Watkins  v.  Paine   (57    Ga,   50),  738, 

1380,  1392. 
Watkins  v.  Petefish  (49  111.  App.  80), 

964. 
Watkins  v.  Wyatt  (9  Baxt.  250).  202. 
Watt  v.  Wisconsin  Cranberry  Co.  (63 

Iowa,  730),  429,  445. 
Wattau  v.  Fenwick  (1  Q.  B.  Div.  346), 

188. 
Watte  v.  Wickersham  (27  Neb.  457), 

1031. 
Watson  v.  Alberts  (120  Mich.  508),  646. 
Watson  v.  Billing  (38  Ark.  278),  108. 
Watson  v.  Cheshire  (18  Iowa,  202), 

1332. 
Watson  v.  Cross  (2  Duvall,  147),  132. 
Watson  v.  Denton  (7  C.  &  P.  85),  1270. 
Watson  v.  Kirby  (H2  Ala.  436),  1831. 


Watson  v.  Lisbon  Bridge  (14  Me.  201), 

1826. 
Watson  v.  Needham  (161  Mass.  404), 

1773. 
Watson  v.  Rodgers  (53  Cal.  401),  963. 
Watson  v.  Roode  (30  Neb.  264),  1273. 
Watson  v.  Rowe  (16  Vt.  525),  1277. 
Watson  v.  Silsby  (166  Mass.  57),  901, 

905,  906. 
Watson  v.  Spratley  (10  Ex.  222).  329. 
Watson  v.  Stever  (25  Mich.  386),  17, 

1411. 
Watson  Coal,  etc.  Co.  v.  Casteel  (68 

Ind.  476),  856. 
Watts  v.  Friend  (10  B.  &  C.  446),  345, 

352. 
Watts  v.  Hendry  (13  Fla.  523),  702, 

709,  711. 
Watts  v.  Howard  (70  Minn.  122),  175. 
Waugh  v.  Beck  (114  Pa.  St.  422),  1031. 
Waugh  v.  Morris  (L.  R,  8  Q.  B.  202), 

1007,  1008. 
Way  v.  Martin  (140  Pa.  St.  499),  1235, 

1248.  1249. 
Way  v.  Ryther  (165  Mass.  226),  937. 
Way  v.  Wakefield  (7  Vt.  228),  16. 
Weatherbee  v.  Cockrell  (44  Kan.  380), 

947. 
Weatlierby  v.  Higgins  (6  Ind.  73),  342. 
Weathersly  v.  Weathersley  (40  Miss. 

462),  692. 
Weaver  v.  Burr  (31  W.  Va.  736),  227, 

229,  244. 
Weaver  v.  Nixon  (69  Ga.  699),  1433. 
Weaver  v.  Nugent  (72  Tex.  272),  955. 
Weaver  v.  Shriver  (79  Md.  530),  936. 
Webb  v.  Baltimore  &  East  Shore  Ry. 

Co.  (77  Md.  92),  331. 
Webbv.  Brooke  (3  Taunt.  6),  1012, 

1015. 
Webb  v.  Fairmaner  (3  Mees.  &  Wels. 

331),  1135. 
Webb  v.  Odell  (49  N.  Y.  583),  276. 
Webber  v.  Donnelly  (33  Mich.  469), 

1013,  1027. 
Webber  v.  Howe  (36  Mich.  150),  365. 


ecu 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Webber  v.  Minor  (6  Busb,  463),  1694. 
"Weber  v.  Baessler  (3  Colo.  App.  459), 

1559,  1590. 
Weber  v.  Rothcbild  (15  Oreg.  385), 

954. 
Webster  v.  Anderson  (42  Mich.  554), 

390,  964. 
Webster  v.  Bailey  (31  Mich.  36),  863, 

875,  8S1. 
Webster  v.  Bailey  (40  Mich.  641),  923, 

924. 
Webster  v.  Bainbridge  (13  Hun,  180), 

1428. 
Webster  v.  Brown  (67  Mich.  328),  438. 
Webster  v.  Cecil  (30  Beav.  62),  278, 

854. 
Webster  v.  Granger  (78  111.  230),  491, 

1194,  1320. 
Webster  v.  Hodgkins  (25  N.  H.  128), 

1255. 
Webster  v.   Munger  (8  Gray,   584), 

1013,  1019,  1027. 
Webster  v.  Peck  (31  Conn.  495),  960. 
Webster  v.  Whit  worth  (49  Ala.  201), 

1455. 
Webster  v.  Wyser  (1  Stew.  184),  1467. 
Webster  v.  Zielly  (52  Barb.  482),  345. 
Webster-Gruber  Marble  Co.  v.  Dry- 
den  (90  Iowa,  37),  1154. 
Weddigen  v.  Boston  Elastic  Co.  (100 

Mass.  422).  1436. 
Weed  v.  Beebe  (12  Vt.  495),  109. 
Weed  v.  Dyer  (53  Ark.  155),  1344. 
Weed  v.  Jewett  (2  Met.  608),  200. 
Weedon  v.  Clark  (94  Ala.  505),  492. 
Weeks  v.  Pike  (60  N.  H.  447),  599. 
Weeks  v.  Prescott  (53  Vt.  57),  960. 
Wegenaar  v.  Dechow  (33  N.  Y.  App. 

Div.  12),  935. 
Wegg  v.  Drake  (16  U.  C.  Q.  B.  252), 

359. 
Weiden  v.  Woodruff  (38  Mich.  130), 

253,  255,  1255. 
Weil  v.  Golden  (141  Mass.  364),  733. 
Weil  v.  State  (46  Ohio  St.  450),  603, 

629. 


Weiland  v.  Krejnick  (63  Minn.  314), 

30. 
Weiland  v.  Sunwall  (63  Minn.  320), 

20,  30. 
Weill  v.  American  Metal  Co.  (182  111. 

128),  1081,  1130,  1705. 
Weimer  v.  Clement  (37  Pa.  St.  147), 

1235,  1311. 
Weinstein  v.  Freyer  (93  Ala.  257),  599, 

649. 
Weir  v.  Bell  (3  Ex.  Div.  238),  876. 
Weir  v.  Day  (57  Iowa,  84),  970. 
Weirv.  Hudnut  (115  Ind.  525),  411. 
Welby  v.  Armstrong  (21  Ind.  489),  947. 
Welch  v.  Burdick  (101  Iowa,  70),  937, 

942. 
Welch  v.  Clifton  Mfg.  Co.  (55  S.  C. 

568),  187. 
Welch  v.  Moffatt  (1  N.  Y.  Sup.  575), 

1161. 
Welch  v.  National  Cash  Reg.  Co.  ( — 

Ky. ),  603. 

Welch  v.  Olmstead  (90  Mich.  492),  936. 
Welch  v.  Spies  (103  Iowa,  389),  496, 

498. 
Weld  v.  Came  (98  Mass.  152),  760, 1189, 

1198. 
Weld  v.  Cutler  (2  Gray,  195),  702,  703, 

714. 
Weld  v.  Nichols  (17  Pick.  538),  1798. 
Welde  v.  Scotten  (59.  Md.  72),  970. 
Weller's  Appeal  (103  Pa.  St.  594),  266. 
Wellington  v.  Oil  Co.  (104  Mass.  64), 

878. 
Wells  v.  Alexandre  (130  N.  Y.  642), 

264. 
Wells  v.  Cook  (16  Ohio  St.  67),  878. 
Wells  v.  Day  (124  Mass.  32),  351. 
Wells  v.  Railway  Co.  (30  Wis.  605), 

429. 
Wells  v.  Spears  (1  McCord,421),  1260. 
Wellston  Coal  Co.  v.  Franklin  Paper 

Co.  (58  Ohio  St.  182),  1713. 
Welsh  v.  Bell  (32  Pa.  St.  12),  643. 
Welsh  v.  Carter  (1  Wend.  185),  1311. 
Welsh  v.  Gossler  (89  N.  Y.  540),  1139. 


TABLE    OF    CASES    CITED. 


CC111 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Welter  v.  Hill  (65  Minn.  273),  202. 
Wemple  v.  North  Dak.  Elev.  Co.  (67 

Minn.  87),  228. 
Wendall  v.  Osborne  (63  Iowa,  100), 

1384. 
Wentworth  v.  Outhwaite  (10  Mees.  & 

W.  535),  1577. 
Wentworth  v.  Woods  Mach.  Co.  (163 

Mass.  28),  599. 
Werder,  In  re  (15  Fed.  R.  789),  197. 
Wertheimer-Sohwartz    Shoe   Co.   v. 

Faris  (46  S.  W.  E.  336),  892,  901. 
West  v.  Anderson  (9  Conn.  107),  933. 
West  v.  Bechtel  ( —  Mich.  — ),  1147, 

1148. 
West  v.  Cunningham  (9  Port.  104), 

1626,  1643. 
West  v.  Emery  (17  Vt.  583),  1810. 
West  v.  Graff  (23  Ind.  App.  410),  905. 
West  v.  Humphrey  (21  Nev.  80),  1181. 
West  v.  Piatt  (127  Mass.  367),  553. 
West  v.  Russell  (48  Mich.  74),  64. 
West  Jersey  R.  Co.  v.  Trenton  Car 

Works  (32  N.  J.  L.  517),  755. 
West  Philadelphia  Nat.  Bank  v.  Field 

(143  Pa.  St.  473),  1422. 
West  Va.  Trans.   Co.   v.  Ohio  River 

Pipe-Line  Co.  (22  W.  Va.  600),  208. 
Wescott  v.  Delano  (20  Wis.  514),  341. 
Westcott  v.  Thompson  (18  N.  Y.  363), 

676. 
Western  Bank  of  Scotland  v.  Addie 

(L.  R.  1  H.  L.  Sc.  145),  876. 
Western  Security  Co.  v.  Douglas  (14 

Wash.  215),  1453. 
Western  Twine  Co.   v.   Wright    (11 

S.  Dak.  521),  1817,  1837. 
Western  Union  Tel.  Co.  v.  American 

Union  Tel.  Co.  (65  Ga.  160),  208. 
Western  Union  Tel.  Co.  v.  Semmes 

(73  Md.  9),  1097. 
Westfall  v.  Jones  (23  Barb.  9),  947. 
Westheimer  v.   Weisman   (60  Kan. 

753),  1028. 
Westmoreland  v.  Powell  (59  Ga.  256), 

970. 


Weston  v.  Brown  (158  N.  Y.  360).  601. 
Weston  v.  Card  (96  Mich.  373),  1384. 
Weston  v.  McDowell  (20  Mich.  353), 

330,  331. 
Westurn  v.  Page  (94  Wis.  251),  1281, 

1294. 
Westzinthus,  Matter  of  (5  B.  &  Ad. 

817),  1568. 
Wetherbee  v.  Green  (22  Mich.  311), 

639,  640. 
Wetherill  v.  Neilson  (20  Pa.  St.  448), 

1230. 
Wetmore  v.  McDougall  (32  Mich.  276), 

909. 
Wetmore  v.  Neuberger  (44  Mich.  362), 

336.  ' 
Weyand  v.  Railway  Co.  (75  Iowa,  573), 

782. 
Weybrick  v.  Harris  (31  Kan.  92),  816, 

1805,  1817. 
Weymouth  v.  Sanborn  (43  N.  H.  171), 

1423. 
Whaley  v.  Hinchman  (22  Mo.  App. 

483),  429. 
Wharton  v.  Mackenzie  (5  Q.  B.  606), 

132. 
Wheadon  v.  Olds  (20  Wend.  174),  274, 

831,  839,  1846,  1850. 
Wheat  v.  Cross  (31  Md.  99),  247,  258, 

276. 
Wheaton  v.  Baker  (14  Barb.  594).  919. 
Wheaton  v.  East  (5  Yerg.  41).  95. 
Wheaton    Roller  Mill   Co.   v.   Noye 

Mfg.  Co.  (66  Minn.  156),  1254. 
Wheeden  v.  Fisk  (50  N.  H.  125),  804. 
Wheeler  v.  Kanst  (46  Wis.  398),  960. 
Wheeler  v.  New  Brunswick,  etc.  R.  R. 

Co.  (115  U.  S.  29),  264. 
Wheeler  v.  Nichols  (32  Me.  233),  964. 
Wheeler  v.  Reed  (36  111.  81),  1245, 1246. 
Wheeler  v.  Russel  (17  Mass.  258),  1045, 

1050. 
Wheeler  v.  Selden  (63  Vt.  429),  960, 

964,  966. 
Wheeler  v.  Sumner  (4  Mason,  183), 

9S7,  1201. 


CC1V 


TABLE   OF   CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Wheeler  v.  Wheeler  (2   Mete.  474), 

200. 
Wheeler  v.  Wheeler  (11  Vt.  60),  1419. 
Wheeler  v.  Wheelock    (33    Vt.   144), 

1810. 
Wheeler  v.  Wheelock  (34  Vt.  553), 

868. 
Wheeler  &  Wilson  Co.  v.  Irish-Amer- 
ican Bank  (105  Ga.  57),  153,  549. 
Wheeler  &  Wilson  Mfg.  Co.  v.  Jacobs 

(2  N.  Y.  Misc.  R.  236),  630. 
Wheeler  &  Wilson  Mfg.  Co.  v.  Keeler 

(65  Hun,  508),  906. 
Wheeler  &  Wilson  Mfg.  Co.  v.  Morgan 

(29  Kan.  519),  178. 
Wheeler  &  Wilson  Mfg.  Co.  v.  Teetz- 

laff  (53  Wis.  211),  628. 
Wheeler  &  Wilson  Mfg.  Co.  v.  Thomp- 
son (33  Kan.  491),  1817. 
Wheelhouse  v.  Parr  (141  Mass.  593), 

737,  746,  1182. 
Wheeling,  etc.  R.  Co.  v.  Koontz  (61 

Ohio  St.  551),  1562,  1563,  1565,  1578, 

1583. 
Wheelock  v.  Berkely  (138  111.  153), 

1818. 
Wheelton  v.  Hardisty  (8  E.  &  B.  232), 

861. 
Wlielan  v.  Couch  (26  Grant  Ch.  74), 

569. 
Whelan  v.  Reilly  (61  Mo.  565),  457. 
Whipple  v.  Gilpatrick  (19  Me.  427), 

599. 
Whipple  v.  Thayer  (16  Pick.  25),  788. 
Whitaker  v.   Brown    ( —   Tex.    Civ. 

App.  — ),  905. 
Whitaker  v.   Eastwick   (75   Pa.   St. 

229),  1302. 
Whitaker  v.  Hueske  (29  Tex.  355), 

1320. 
Whitaker  v.  McCormick  (6  Mo.  App. 

114),  1345,  1354,  1834 
Whitaker  v.  Sumner  (20  Pick.  399),  39. 
Whitbeck   v.   Van  Ness   (11   Johns. 

409),  1423,  1425. 
Whitcomb  v.  Denio  (52  Vt.  382),  915. 


Whitcomb  v.  Joslyn  (51  Vt.  79),  109. 
Whitcomb  v.  Whitney  (24  Mich.  486), 

489,  754. 
Whitcomb  v.  Wood  worth  (54  Vt.  544), 

569,  603. 
White,  Ex  parte  (L.  R.  6  Ch.  App. 

397),  45,  49. 
White  v.  Barber  (123  U.  S.  392),  1039. 
White  v.  Beeton  (7  H.  &  N.  42),  1075. 
White  v.  Branch  (51  Ind.  210),  109. 
White  v.  Buss  (3  Cush.  448),  1019. 
White  v.  Cox  (3  Hayw.  79),  86,  90. 
White  v.  Crew  (16  Ga.  416),  947. 
White  v.  ElwelL  (48  Me.  360),  334. 
White  v.  Foster  (102  Mass.  375),  336. 
White  v.  Franklin   Bank   (22  Pick. 

181),  999,  1001. 
White  v.  Garden  (10  C.  B.  919),  148. 
White  v.  Harvey  (85  Me.  212),  1186. 
White  v.  Hendrie  (38  Mich.  390),  1595. 
White  v.  Langdon  (30  Vt.  599),  601. 
White  v.  Miller  (71  N.  Y.  118),  1334, 

1827. 
White  v.  Miller  (7  Hun,  427),  1354. 
White  v.  Mitchell  (38  Mich.  390),  924, 

1588,  1589. 
White  v.  McCracken  (60  Ark.  613), 

485,  492,  964,  1198. 
White  v.  Oakes  (89  Me.  367),  629, 1247, 

1316,  1346. 
White  v.  Pease  (15  Utah,  170),  967, 

1132. 
White  v.  Proctor  (4  Taunt.  209),  461. 
White  v.  Solomon  (164  Mass.  516),  1415, 

1671,  1675,  1687,  1694,  1695,  1698. 
White  v.  Stelloh  (74  Wis.  435),  1235, 

1266,  1314,  1316,  1355. 
White  v.  Toncray  (9  Leigh,  347),  1171. 
White  v.  Welsh  (38  Pa.  St.  396),  1501, 

1515. 
White  v.  Wilks  (5  Taunt.  176),  702, 

711. 
White  Water  Valley  Canal  Co.  v. 

Valette  (21  How.  424),  141. 
Whitefield  v.  McLeod  (2  Bay,  380), 

1319. 


TABLE    OF   CASES    CITED. 


CCV 


References  are  to  sections:  Vol. 

Whiteford  v.   Hitchcock  (74  Mich. 

208),  228,  234. 
Whitehead  v.  Anderson  (9  M.  &  W. 
518),   1537,   1556,   1557,   1577,   1578, 
1591,  1598,  1601,  1608,  1609. 
Whitehouse  v.  Frost  (12  East,  614), 

708,  711,  759. 
Whitesides  v.  Hunt  (97  Ind.  191),  203, 

1031,  1032,  1035,  1036,  1039. 
Whitfield  v.  United  States  (92  U.  S. 

165),  1024. 
Whiting  v.  Farrand  (1  Conn.  60),  739, 

1181. 
Whiting  v.  Hill  (23  Mich.  399),  879. 
Whiting  v.  Insurance  Co.  (15  Md.  297), 

1466. 
Whiting  v.  Price  (170  Mass.  240),  1841. 
Whiting  v.  Sullivan   (7  Mass.  107), 

1475. 
Whiting  Mfg.  Co.  v.  Gephart  (6  Wash. 

615),  964. 
Whitla  t.  Moore   (164  Pa.   St.  451), 

1158. 
Whitlock  v.  Heard  (3  Rich.  88),  912. 
Whitman  Agricultural  Ass'n  v.  Na- 
tional Ass'n  (45  Mo.  App.  90),  1407. 
Whitman  Agricultural  Co.  v.  Horn- 
brook  (55  N.  E.  R.  502),  49. 
Whitmarsh  v.  Hall  (3  Denio,  375),  109. 
Whitmarsh  v.  Walker  (1  Mete.  313), 

339,  1407. 
Whitmore  v.  Gibbs  (24  N.  H.  484),  331. 
Whitmore  v.  Iron  Co.  (2  Allen,  52), 

1254,  1259,  1340. 
Whitmore  v.  South  Boston  Iron  Co. 

(2  Allen,  52),  1314. 
Whitney  v.  Allaire  (1  N.  Y.  305),  910, 

1843. 
Whitney  v.  Boardman  (118  Mass.  242), 

933,  1339,  1640,  1643,  1690. 
Whitney  v.  Dutch  (14  Mass.  457),  121. 
Whitney  v.  Eaton  (15  Gray,  225),  546, 

549,  556. 
Whitney  v.  Heywood  (6  Cush.  82), 
1302. 


I,  §§  1-797;  Vol.  H,  §§  798-1850. 

Whitney  v.  McConnell  (29  Mich.  12), 

588,  605. 
Whitney   v.   Price  (172  Mass.   240), 

1843. 
Whitney  v.  State  Bank  (7  Wis.  620), 

1455. 
Whitney  v.  Sutton  (10  Wend.  411), 

1242, 1268. 
Whitney  v.  Taylor  (54  Barb.   536), 

1270. 
Whittaker,  Ex  parte  (L.  R.  10  Ch. 

App.  446),  906. 
Whitten  v,  Fitzwater  (129  N.  Y.  626), 

902. 
Whittier  v.  Dana  (10  Allen,  326),  806. 
Whittington  v.  Ross  (8  111.  App.  234), 

1456. 
Whitwell   v.   Vincent  (4  Pick.  449), 

554,  555.  1437. 
Whitworth  v.  Thomas  (83  Ala.  308), 

932,  935. 
Wickes  v.  Hill  (115  Mich.  323),  569, 

646. 
Wickham  v.  Martin  (13  Gratt.  427), 

924. 
Widoe  v.   Webb  (20  Ohio  St.  431), 

1004. 
Wiedeman   v.  Keller    (171   I1L   93), 

1356. 
Wieler  v.  Schilizzi  (17  C.  B.  619),  1333. 
Wiener  v.  Whipple  (53  Wis.  298),  430, 

446,  447,  448,  455, 1327. 
Wigand  v.  Sichel  (3  Keyes,  120),  912, 

1411. 
Wiggin  v.  Day  (9  Gray,  97),  924. 
Wiggins  v.  Snow  (89  Mich.  476),  595, 

605,  613,  636,  642. 
Wigglesworth  v.  Steers  (1  H.  &  M. 

70),  86. 
Wigton  v.  Bowley.  (130  Mass.  252), 

502,  740,  757,  787. 
Wilbur  v.  Nichols  (61  Vt.  432),  950. 
Wilbur  Lbr.  Co.  v.  Overbeck  Co.  (96 

Wis.  383 ),  1844 
Wilcox  v.  Cherry  (123  N.  C.  79),  569. 


CCV1 


TABLE  OF    CASES    CITED. 


References  are  to  sections:  Vol. 

Wilcox  v.  Cline  (70  Mich.  517),  248. 
Wilcox   v.    Hall   (53   Ga.   635),   1340, 

1344. 
Wilcox  v.  Iowa  Wesleyan  University 

(32  Iowa,  367),  863. 
Wilcox  v.  Jackson  (7  Colo.  521),  144, 

964. 
Wilcox  v.  Owen  (64  Ga.  601),  1260, 

1340. 
Wilcox  v.  Roath  (12  Conn.  550),  121. 
Wilcox  v.  San  Jose  Fruit   Packing 

Co.  (113  Ala.  519),  915. 
Wilcox  v.  Williamson  Co.  (92  Iowa, 

215),  603. 
Wilcox  v.  Young  (66  Mich.  687),  212. 
Wilcox  Silver  Plate  Co.  v.  Green  (72 

N.  Y.  17),  363,  391,  393,  736,  1181. 
Wilder  v.  Beede  (119  Cal.  646),  942. 
Wilder  v.  De  Cou  (18  Minn.  471),  875. 
Wilder  v.  Weakley  (34  Ind.  184),  74. 
Wiles  v.  Woodward   (5  Exch.  557), 

834. 
Wiley  v.  Athol  (170  Mass.  426),  1075. 
Wiley  v.  Howard  (15  Ind.  169),  1794. 
Wiley  v.  Lashlee    (8    Humph.    716), 

960. 
Wiley  v.  Mahood   (10  W.  Va.  206), 

1455. 
Wiley  v.  Smith  (2  Can.  Sup.  Ct.  R.  1), 

1587. 
Wiley  v.  Smith  (1   Ont.  App.  179), 

1587. 
Wiley  v.  Wilson  (77  Ind.  596),  79. 
Wilkes  v.  Ferris  (5  Johns.  335),  380. 
Wilkin  Mfg.  Co.  v.  Loud  Lumber  Co. 

(94  Mich.  158),  228. 
Wilkins  v.  Stevens  (8  Vt.  214),  1441. 
Wilkinson,  Ex  parte  (Ambler,  399), 

1526. 
Wilkinson,  Adm'r,  v.  Wilkinson  (61 

Vt.  409),  364. 
Wilkinson  v.  Blount  Mfg.  Co.  (169 

Mass.  374),  1073,  1080. 
Wilkinson  v.  Evans  (L.  R.  1  C.  P.  407), 
428. 


I,  §§  1-797;  Vol.  II,  §§798-1850. 

Wilkinson  v.  Ferre  (24  Pa.  St.  190), 

838,  1793, 1849. 
Wilkinson  v.  Heavenrich  (58  Mich. 

574),  1449. 
Wilkinson  v.  Holiday  (33  Mich.  386), 

499,  516. 
Wilkinson  v.  Holloway  (7  Leigh,  277), 

1455. 
Wilkinson  v.  Ketler  (69  Ala.  435),  202. 
Wilkinson  v.  Stewart  (85  Pa.  St.  255), 

1158. 
Wilkinson  v.  Taylor  Mfg.  Co.  (67  Miss. 

281),  426,  428. 
Wilkinson  v.   Williamson    (76  Ala. 

163),  206. 
Wilks  v.  Davis  (3  Meriv.  507),  674. 
Willamette  Steam  Mills  Co.  v.  Union 

Lbr.  Co.  (94  Cal.  156),  1374. 
Willan  v.  Carter  (Oliphant,  74),  1270. 
Willard  v.  Ostrander  (46  Kan.  591), 

1254 
Willard  v.  Tatum(97  Cal.  xviii),1374. 
Willcox  v.  Jackson  (51  Iowa,  208),  68. 
Williams  v.  Allen  (10  Humph.  337), 

634. 
Williams  v.  Briggs  (11  R.  L  476),  202. 
Williams  v.  Brown  (34  Me.  594),  95. 
Williams  v.  Burgess  (10  Ad.  &  E.  499), 

328. 
Williams  v.  Byrnes  (1  Moore,  P.  C, 

N.  S.,  154),  434. 
Williams  v.  Carr  (80  N.  C.  294),  1032, 

1043. 
Williams  v.  Clink  (90  Mich.  297),  947, 
Williams  v.  Crosby  Lumber  Co.  (118 

N.  C.  928),  1618, 1702. 
Williams  v.  Dakin  (22  Wend.  201), 

1073. 
Williams  v.  Dillon  (100  Ga.  656),  1718. 
Williams  v.  Feiniman  (14  Kan.  288), 

702. 
Williams   v.  Gray  (39  Mo.  201),  491, 

527. 
Williams    v.   Hart   (116  Mass.   513), 
1131. 


TABLE    OF    CASES    CITED. 


CCV11 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Williams  v.  Hodges  (113  N.  C.  36), 

1582. 
Williams  v.  Ingram   (21   Tex.   300), 

1272. 
Williams  v.  Jackman  (16  Gray,  514), 

755. 
Williams  v.  Johnston  (92  N.  C.  532), 

Ho.-). 
Williams  v.  Lake  (2  E.  &  E.  349),  434. 
Williams  v.  Lane  (8?  Wis.  152),  1057, 

iosa 

Williams  v.  Montgomery  (148  N.  Y. 

519),  1718,  1724, 1727. 
Williams  v.  Moor  (11  M.  &  W.  256), 

124. 
Williams  v.  Moore  (5  N.  H.  235),  1499. 
Williams  v.  McFadden  (23  Fla.  143), 

874,  1843. 
Williams  v.  Paul  (6   Bingham,  653), 

1057. 
Williams  v.  Robb  (104  Mich.  242),  1391, 

1392. 
Williams  v.  Robinson   (73    Me.   186), 

446,  447,  448,  449. 
Williams  v.  Reynolds  (6  Best  &  S. 

495),  1702,  1770. 
Williams  v.  Slaughter  (3  Wis.  347), 

1356, 
Williams  v.  Spafford    (8    Pick.   250), 

1520. 
Williams  v.  Tappan  (23  N.  H.  385), 

1047. 
Williams  v.  Thrall    (101    Wis.    337), 

181 1,  1826. 
Williams  v.  Tiedeman  (6  Mo.   App. 

269),  1034. 
Williams  v.  Tobacco  Co.  (44  S.  W.  R. 

isr,).  49. 
Williams  v.  Walker    (2    Sandf.    Ch. 

325),  1453. 
Williams  v.  Wentworth  (5  Beav.  325), 

84. 
Williams  v.  Woods  (16  Md.  220),  457, 

463, 1748. 
Williams  Mfg.  Co.  v.  Standard  Brass 

Co.  (173  Mass.  356),  1384. 


Williamson  v.  Allison  (2   East,  446), 

932,  1311, 1810. 
Williamson  v.  Berry  (8  How.  495),  5, 

9,  20,  205,  234. 
Williamson  v.  Brandenburg  (6   Ind. 

App.  97),  1057. 
Williamson  v.  Canaday  (3  Ired.  349), 

1281. 
Williamson  v.  Russell  (39  Conn.  406), 

923. 
Williamson  v.  Sammons(34  Ala.  691), 

1302. 
Williamson  v.  Wachenheim  (58  Iowa, 

277),  953. 
Williar  v.  Irwin  (11  Biss.  57),  1032. 
Willis  v.  Morris  (63  Tex.  458).  947. 
Willis  v.  Mclntyre  (70  Tex.  34).  955. 
Willis  v.  Twambly    (13    Mass.    204), 

1017. 
Willis  v.  Willis'  Adm'r  (6  Dana,  48), 

483,  492. 
Willman  Co.  v.  Fussy  (15  Mont.  511), 

774,  779. 
Willock  v.  Crescent  Oil  Co.  (184  Pa. 

St.  245),  1746. 
Wills  v.  Ross  (77  Ind.  1),  428. 
Wiiman  v.  Mizer  (60  Ark.  281),  1840, 

1841. 
Wilmarth  v.  Mountford  (4  Wash.  79), 

1437. 
Wilmot  v.  Hurd  (11  Wend.  584),  1235, 

1248. 
Wilmot  r.  Lyon  (49  Ohio  St.  296),  906. 
Wilmouth  v.  Patton   (2  Bibb,  280), 

754,  1124 
Wilmshurst  v.  Bowker  (7  Man.  &  Gr. 

882),  775.  787,  1541,  1543. 
Wilson  v.  Bauman  (80  111.  494^,  1147. 
Wilson  v.  Branch  (77  Va.  65),  95. 
Wilson  v.  Carson  (12  Md.  54),  649. 
Wilson  v.  Cattle  Co.  (36  U.  S.  App. 

634),  1839. 
Wilson  v.  Crochet  (43  Mo.  216).  154. 
Wilson  v.  Deen  (74  N.  Y.  531),  1254. 
Wilson  v.  Express  Co.  (27  Mo.  App. 
360),  887. 


CCV1U 


TABLE    OF    CASES    CITED. 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  II,  §§  798-1850. 


Wilson  v.  Ford  (L.  R.  3  Ex.  63),  185. 
Wilson  v.  Foree  (6  Johns.  110),  913, 

1411. 
Wilson  v.  Fruit  Co.  (11  Ind.  App.  89), 

747. 
Wilson  v.  Fuller  (58  Minn.  149),  336. 
Wilson  v.  Hanson  (20  N.  H.  375),  1428. 
Wilson  v.  Hill  (17  Nev.  401),  964. 
Wilson  v.  Leslie  (20  Ohio,  161),  963. 
Wilson  v.  Lewiston  Mill  Co.  (150  N. 

Y.  314),  428,  445,  452. 
Wilson  v.  Milligan  (75  Mo.  41),  1057. 
Wilson  v.  Stratton  (47  Me.  120),  660, 

1449. 
Wilson  v.  Voight  (6  Colo.  614),  649. 
Wilson  v.  Wilson  (181  Pa.  St.  80),  175. 
Wilson  v.  Y.  &  Md.  Line  R,  Co.  (11 

G.  &  J.  58),  673. 
Winchell  v.  Carey  (115  Mass.   560), 

1058. 
Winchell  v.   Scott   (114  N.  Y.  640), 

1147. 
Winchester  v.  Charter  (12  Allen,  606), 

973. 
Winchester  v.  Howard  (97  Mass.  303), 

267,  268. 
Winchester  v.  Newton  (2  Allen,  492), 

1145,  1148. 
Winchester  Mfg.  Co.  v.  Carman  (109 

Ind.  31),  601. 
Wind  v.  Her  (93  Iowa,  316),  676,  678, 

1028. 
Windmuller  v.  Pope  (107  N.  Y.  674), 

1089,  1090,  1092,  1708. 
Windram  v.  French  (151  Mass.  547), 

882. 
Windsor  v.  Cruise  (79  Ga.  635),  683. 
Wineland  v.  Coonce  (5  Mo.  296),  923. 
Wineman  v.  Walters  (53  Mich.  470), 

1663. 
Winfield  v.  Dodge  (45  Mich.  355),  1053, 

1057. 
Wing  v.  Clark  (24  Me.  366),  736,  483, 

492. 
Wing  v.  Milliken  (91  Me.  387),  1786. 


Wing  v.  Thompson  (78  Wis.  256),  612, 

624,  638. 
Wing  v.  Wadhams  Oil  Co.  (99  Wis. 

248),  211. 
Wingate  v.  Buhler  (62  Mo.  App.  418), 

892. 
Winkelmeyer  Brewing  Ass'n  v.  Nipp 

(6  Kan.  App.  730).  1027,  1029. 
Winkley  v.  Hill  (9  N.  H.  31),  956. 
Winn  v.  Morris  (94  Ga.  452),  1850. 
Winner  v.  Williams  (62  Mich.  363), 

396. 
Winship  v.  Bank  of  United  States  (5 

Peters,  529),  143. 
Winside  State   Bank  v.  Lound   (52 

Neb.  469),  1741. 
Winslow  v.  Harriman  Iron  Co.  (42  S. 

W.  R.  698),  1634. 
Winslow  v.  Leonard  (24  Pa.  St.  14), 

987. 
Winslow  v.  Norton  (29  Me.  419),  166. 
Winslow  v.  Railroad  Co.  (42  Vt.  700), 

887. 
Winsor  v.   Lombard   (18  Pick.   60), 

1335,  1337,  1357. 
Winsted  Bank  v.  Webb  (39  N.  Y.  325), 

1429. 
Winterbottom  v.  Wright  (10  M.  &  W. 

109),  878. 
Wintz  v.  Morrison  (17  Tex.  372),  869, 

935. 
Wirebach  v.  First  Nat.  Bank  (97  Pa. 

St.  543),  76,  79. 
Wirth  v.  Roche  (92  Me.  383),  1004. 
Wisconsin  Red  Pressed  Brick  Co.  v. 

Hood  (60  Minn.  401),  1337,  1350. 
Wise  v.  Collins  (121  Cal.  147),  567. 
Wisecarver  v.  Adamson  (118  Pa.  St. 

53),  1128. 
Wiseman  v.  Vanderput  (2  Vern.  203), 

1526. 
Witherow  v.  Witherow  (16  Ohio,  238), 

1162. 
Wittkowsky  v.  Wasson  (71  N.  C.  451), 

205,  209. 


TABLE    OF    CASES    CITED. 


CC1X 


References  are  to  sections:  Vol.  I,  §§  1-797;  Vol.  n,  §§  798-1850. 


Wolcott  v.  Heath  (78  111.  433),  1034. 
Wolcott  v.  Mount  (36  N.  J.  L.  262), 

1209,  1334,  1354,  1827. 
Wolcott  v.  Mount  (38  N.  J.  L.  496), 

1827. 
Wolf  v.  Dietzsch  (75  111.  205),  746. 
Wolf  v.  Kalm  (62  Miss.  814),  964. 
Wolf  v.  Lachman  (20  S.  W.  R.  867), 

892,  924. 
Wolf  v.  Marsh  (54  Cal.  228),  1097. 
Wolf  v.  McGugin  (37  W.  Va.  552),  955. 
Wolf  v.  National  Bank  (178  111.  85), 

203,  1037. 
Wolf  v.  Willetts  (35  111.  88),  264. 
Wolford  v.   Young  (105  Iowa,  512), 

1453. 
Wollensak  v.  Briggs  (119  111.  453),  755. 
Wollner  v.  Lehman  (85  Ala.  274),  903, 

904. 
Wood  v.  Ashe  (3  Strob.  64),  1260. 
Wood  v.  Bell  (5  El.  &  Bl.  772),  755. 
Wood  v.  Bell  (6  E.  &  B.  355),  355,  761, 

762. 
Wood  v.  Boynton  (64  Wis.  265),  276. 
Wood  v.  Cavin  (38  Tenn.  506),  1795. 
Wood  v.  Chambers  (20  Tex.  247),  952. 
Wood  v.  Evans  (98  Ga.  454),  603. 
Wood  v.  Garland  (58  N.  H.  154),  915. 
Wood  v.  Jackson  (8  Wend.  9),  955. 
Wood  v.  Losey  (50  Mich.  475),  131, 132. 
Wood  v.  Manley  (11  Ad.  &  El.  34),  1191. 
Wood  v.  Michaud  (63  Minn.  478),  765, 

1321,  1674. 
Wood  v.  Roeder  (50  Neb.  476),  872. 
Wood  v.  Ross  (—  Tex.  Civ.  App.  — ), 

1314,  1355. 
Wood  v.  Sheldon  (42  N.  J.  L.  421),  835, 

838,  1303,  1849. 
Wood  v.  Smith  (5  M.  &  Ry.  124),  1241, 

1242,  1277. 
Wood  v.  Tastell  (6  Ad.  &  EL,  N.  S., 

234),  491,  1187,  1412. 
Wood  v.  Yeatman  (15  B.  Mon.  270), 

1571. 
Wood  Harvester  Co.  v.  Ramberg  (60 

Minn.  219),  1321. 


Wood  Mach.  Co.  v.  Calvert  (89  Wis. 

640),  1380,  1385. 
Wood  Mower  &  Reaper  Co.  v.  Thayer 

(50  Hun,  516),  1344. 
Wood  Mowing  &  Reap.  Mach.  Co.  v. 
*  Crow  (70  Iowa,  340),  1288. 
Wood  Mowing  &  Reap.  Mach.  Co.  v. 

Gaertner  (55  Mich.  453),  1255. 
Wood    Reaping,    etc.   Mach.   Co.   v. 

Smith  (50  Mich.  565),  667,  669. 
Woodall  v.  Kelly  (85  Ala,  368),  955. 
Woodbury  v.  Larned  (5  Minn.  339), 

1455. 
Woodbury  v.  Long  (8  Pick.  543),  1189. 
Woodbury  v.  Robbins  (10  Cush.  520), 

1270,  1271. 
Woodford  v.  Hamilton  (139  Ind.  481), 

1026. 
Woodford  v.  McClenahan   (4  Gilm. 

85),  1281. 
Woodford  v.  Patterson  (32  Barb.  630), 

328. 
Wnodle  v.  Whitney  (23  Wis.  55),  1155, 

1208,  1344. 
Woodley  v.  Coventry  (2  H.  &  C.  164), 

1493,  1503. 
Woodruff  v.  Nashville,  etc.  R.  Co.  (2 

Head,  87),  752. 
Woodruff  v.  Noyes  (15  Conn.  335),  746, 

1572. 
Woodruff  v.  Railroad  Co.   (2  Head, 

87),  51. 
Woodruff  v.  Scaife  (83  Ala.  152),  143. 
Wood's  Appeal  (92  Pa.  St.  379),  162. 
Woods  v.  Armstrong  (54  Ala.   150), 

1045,  1046,  1048,  1050. 
Woods  v.  Ayers  (39  Mich.  345),  17, 

1411. 
Woods  v.  Cramer  (34  S.  C.  508),  1643. 
Woods  v.  Magee   (7  Ohio,  128),  542, 

701,  714. 
Woods  v.  Miller  (55  Iowa,  168),  1129, 

1134. 
Woods  v.  Nichols  (21  R.  L  537),  156. 
Woods  v.  Russell  (5  B.  &  Aid.  942), 

510,  755,  759,  761,  762. 


ccx 


TABLE   OF   CASES    CITED. 


References  are  to  sections:  Vol. 

Woodward  v.  Barnes  (43  Vt.  330  \  183. 
Woodward  v.  Boone  (126  Ind.  122),  29. 
Woodward  v.  Brooks   (128   111.  212), 

1043. 
Woodward  v.  Emmons  (61  N.  J.   L. 

281),  1387. 
Woodward  v.  Seamans(125  Ind.  350), 

22  25. 
Woodward  v.  Thacher  (21  Vt.  580), 

1813. 
Woolenslagle   v.    Runals    (76  Mich. 

545),  1843. 
Wooley  v.  Wagon  Co.   (59  N.  J.  L. 

278),  603,  649., 
Wolfe  v.  Home  (2  Q.  B.  Div.   355). 

1138. 
Woolman    v.   Wirtsbaugh   (22  Neb. 

490),  1843. 
Woolner  v.  Hill  (93  N.  Y.  576),  1097. 
Woolridge  v.  Gage  (68  111.  157),  970. 
Woonsocket   Rubber  Co.  v.  Lowen- 

berg  (17  Wash.  29),  908,  909,  924. 
Worcester  v.  Eaton  (11   Mass.  368), 

1053. 
Worden  v.  Harvester  Co.  (11   Neb. 

116\  1384. 
Work  v.  Bennett  (70  Pa.  St.  484),  1787. 
Work  v.  Jacobs  (35  Neb.  772),  892,  924. 
Worland  v.  Kimberlin    (6    B.  Mon. 

608),  952. 
Wornock  v.  Loar  (11  S.  W.  R.  438), 

132. 
Worrall  v.  Munn  (5  N.  Y.  229),  425. 
Worth  v.  McConnell  (42  Mich.  473), 

1245. 
Worthington  v.  Bullitt(6Md.  172),  957. 
Worthy  v.  Johnson  (8  Ga.  236),  1307. 
Wray  v.  Chandler  (64  Ind.  146),  72,  73. 
Wright  v.  Bank  of  Metropolis  (110 

N.  Y.  237),  1132,  1787. 
Wright  v.    Barnard  (89   Iowa,   166), 

599.  603,  679. 
Wright  v.  Bell  (5  Price,  325),  1730. 
Wright  v.  Brown  (67  N.  Y.  1),  906. 
Wright  v.  Cabot  (89  N.  Y.  570),  1447, 
1452. 


I,  §§  1-797;  Vol.  n,  §§  798-1850. 

Wright  v.  Casteel.  State  ex  rel.  (51 

Mo.  App.  143),  964. 
Wright  v.  Daily  (26  Tex.  730),  1455. 
Wright  v.  Dannah  (2  Camp.  203),  462. 
Wright  v.  Fisher  (65  Mich.  279),  86. 
Wright  v.  Hart  (18  Wend.  449),  1311, 

1357. 
Wright  v.  Hughes  (119  Ind.  324),  1013. 
Wright  v.  Lowes  (4  Esp.  82),  1597. 
Wright  v.  McCormick  (67  Mo.  426), 

964. 
Wright  v.  0"Brien  (5  Daly,  54),  755, 

759. 
Wright  v.  Ryder  (26  Cal.  342),  208. 
Wright  v.  Shelby  R.  Co.  (16  B.  Mon. 

4),  874. 
Wright  v.  Tetlow  (99  Mass.  397),  755. 
Wright  v.  Vaughn  (45  Vt.  369),  565. 
Wright  v.  Weeks  (25  N.  Y.  153),  426. 
Wright  v.  Wright  (51  N.  J.   Eq.  475), 

892. 
Wrigley  v.  Cornelius  (162  111.  92),  1633, 

1635,  1643. 
Wulschner  v.  Ward  (115  Ind.  219),  328. 
Wyckoff    v.    Vicary  (75    Hun,   409), 

149. 
Wyler  v.  Rothschild  (53  Neb.  566), 

361,  1387. 
Wyman  v.  Brown  (50  Me.  139),  973. 
Wyman  v.  Rae  (11  G.  &  J.  416),  1423, 

1427. 
Wynn  v.  Longley  (31  111.  App.  616), 

1843. 
Xenos  v.  Wickham  (L.  R.  2  H.  L. 

296),  259. 
Vale  v.  Seely  (15  Vt.  221),  1191. 
Yanger  v.  Skinner  (1  McCarter,  389), 

69. 
Yates  v.  Lyon  (61  N.  Y.  344).  97. 
Yates  v.  Pym  (6  Taunt.  446),  1236, 

1264. 
Yeakle  v.  Jacob  (33  Pa.  St.  376),  336. 
Yellow  Poplar  Lumber  Co.  v.  Chap- 
man (20  C.  C.  A.  687),  1690. 
Yerkes  v.  Norris  (90  Mich.  234),  1426. 
Yoder  v.  Haworth  (57  Neb.  150),  49. 


TABLE    OF   CASES    CITED. 


CCX1 


References  are  to  sections:  Vol.  I,  §§  1-797:  Vol.  H,  §§  79&-1  )50. 


York  County  Bank  v.  Carter  (38  Pa. 

St.  446),  955. 
Young  v.  Austin  (6  Pick.  280),  714. 
Young  v.  Blaisdell  (60  Me.  272),  355, 

358. 
Young  v.  Burton  (1  McMul.  Eq.  255), 

1719. 
Young  v.  Cureton  (87  Ala.  727),  1763. 
Young  v.  Dalton  (83  Tex.  497),  1664. 
Young  v.  Kansas  Mfg.  Co.  (23  Fla. 

394),  546,  549. 
Young  v.  Lathrop  (67  N.  C.  63),  977. 
Young  v.  Mertens  (27  Md.  114),  1643, 

1682. 
Young  v.  Miles  (20  Wis.  615),  702, 

711. 
Young  v.  Miles  (23  Wis.  643),  708. 
Young  v.  McClure  (2  Watts  &  S.  147), 

960. 
Young  v.  Stevens  (48  N.  H.  133),  74, 

84,  109. 
Young  Mfg.    Co.   v.  Wakefield  (121 

Mass.  91),  831,  1401,  1846. 
Youngblood    v.   Birmingham  Trust 

Co.  (95  Ala.  521),  1045. 


Yount  v.  Yount  (144  Ind.  133),  65. 
Youse  v.  Norcoms  (12  Mo.  549).  95. 
Yundt  v.  Roberts  (5  Serg.  &  R.  139), 

1004. 
Zabriskie  v.  Central,  etc.  R.  Co.  (131 

N.  Y.  72),  1335,  1393,  1395. 
Zaleski  v.  Clark  (44  Conn.  218),  665, 

666. 
Zann  v.  Haller  (71  Ind.  136),  451. 
Zellner  v.  Mobley  (84  Ga.  746),  1194. 
Ziegler  v.  Handrick  (106  Pa.  St.  87), 

985. 
Zimmerman  t.  Morrow  (28  Minn.  367), 

859.  1225,  1247. 
Zimmerman  v.  Sale  (3  Rich.  76),  451. 
Zimmerman  Mfg.  Co.  v.  Dolph  (104 

Mich.  281),  1254. 
Zoeller  v.  Riley  (100  N.  Y  103),  151. 
Zook  v.  Odle  (3  Colo.  App.  87),  1423. 
Zuehtmann  v.  Roberts  (109  Mass.  53), 

599. 
Zuck  v.  McClure  (98  Pa.  St.  541),  1089, 

1090,  1092,  1129,  1707. 
Zucker  v.  Karpeles  (88  Mich.  413),  901, 

906. 


SALE  OF  PERSONAL  PROPERTY. 


SALE  OF  PERSONAL  PROPERTY. 


BOOK  I. 

OF  THE  CONTRACT  OF  SALE:  ITS  FORMATION. 


CHAPTER  I. 


DEFINITIONS. 


1.  Sale  defined. 

2.  Forms  of  bargaining. 

3.  Effect  of  intention. 

4.  Essential  elements. 

5.  Further    of    the    definition  — 

Executory  or  executed  sales. 


§  6.  Bargain  and  sale. 

7.  Absolute  and  conditional  sales. 

8.  Voluntary  and  forced  sales. 

9.  Judicial  sales. 

10.  Public  and  private  sales. 


§  1.  Sale  defined, —  A  sale  of  personal  property  is  the  trans- 
fer, in  pursuance  of  a  valid  agreement,  from  one  party,  called  the 
seller,  to  another,  called  the  buyer,  of  the  general  or  absolute 
title  to  a  specific  chattel,  for  a  price,  or  a  consideration  esti- 
mated, in  money.1 


xMr.  Benjamin,  Sales,  §  1,  says: 
"  It  may  be  defined  to  be  a  transfer 
of  the  absolute  or  general  property 
in  a  thing  for  a  price  in  money.'''' 

Blackstone  defines  it  as  "a  trans- 
mutation of  property  from  one  man 
to  another  in  consideration  of  some 
price."  2  BL  Com.  446.  Kent  de- 
fines it  as  "  a  contract  for  the  trans- 
fer of  property  from  one  person  to 
another  for  a  valuable  consideration." 
2  Kent's  Com.  468. 

Long's  definition  is  "a  transfer- 
ring of  property  from  one  person  to 


another,  in  consideration  of  a  sum 
of  money  to  be  paid  by  the  vendee 
to  the  vendor."    Long  on  Sales,  1. 

Story  (W.  W.)  says:  "A  sale  is  a 
transfer  of  the  absolute  title  to  prop- 
erty for  a  certain  agreed  price." 
Story  on  Sales,  §  1. 

Tiedeman  defines  it  as  "  a  contract 
or  agreement  for  the  transfer  of  the 
absolute  property  in  personalty  from 
one  person  to  another  for  a  price  in 
money."    Tiedeman  on  Sales,  §  1. 

English  Sale  of  Goods  Act,  1893: 
"1. —  (1)  A  contract  of  sale  of 


§  1.]  LAW   OF    SALE.  [BOOK    I. 

The  essential  elements  here  involved  are  that  there  must  be 

(1)  a  transfer,  of  (2)  the  general  or  absolute  title,  to  (3)  a  spe- 
cific chattel,  for  (4)  a  price  in  money  or  a  consideration  esti- 
mated in  money. 

Sale  is  pre-eminently  the  transfer  of  the  title.  This  transfer 
may  ensue  at  once  as  the  immediate  effect  of  the  present  agree- 
ment of  the  parties ;  or  it  may  be  the  postponed  result  to  ensue 
in  future  from  the  present  agreement  of  the  parties  aided  or 
completed  by  some  subsequent  act  or  event,  such  as  the  lapse 
of  time  or  the  performance  of  precedent  conditions.  In  either 
case  the  sale  takes  place  only  when  the  title  passes. 

Sale  means,  moreover,  the  transfer  of  the  absolute  or  gen- 
eral title.  There  may  be  other  transfers,  of  limited  interests, 
such  as  the  right  of  possession  or  some  special  property  in  or 
lien  upon  the  goods ;  but  these,  as  will  be  seen,1  do  not  consti- 
tute a  sale. 

There  can  clearly  be  no  present  sale  until  the  specific  chattel 
has  been  ascertained  and  identified.  There  may  be  bargain- 
ings concerning  the  future  sale  of  a  chattel  not  yet  in  exist- 
ence, or  not  yet  ascertained ;  but  these  bargainings,  as  will  also 
be  seen,2  cannot  ripen  into  sale  until  in  some  way  the  particular 
chattel  has  been  ascertained. 

There  may  be  transfers  of  title  for  some  other  consideration 
than  a  price  in  money ;  but  no  transfer,  as  will  further  be  seen,3 
is  entitled  to  be  denominated  a  sale  unless  it  be  for  a  price  in 
money,  or  at  least  a  consideration  estimated  in  money. 

is  a  contract  whereby  the  seller  property  in  the  goods  is  to  take  place 
transfers  or  agrees  to  transfer  the  at  a  future  time  or  subject  to  some 
property  in  goods  to  the  buyer  for  a  condition  thereafter  to  be  fulfilled, 
money  consideration,  called  the  price,  the  contract  is  called  an  agreement 
There  may  be  a  contract  of  sale  be-  to  sell.  (4)  An  agreement  to  sell  be- 
tween one  part-owner  and  another,  comes  a  sale  when  the  time  elapses 

(2)  A  contract  of  sale  may  be  abso-  or  the  conditions  are  fulfilled  sub- 
lute  or  conditional.  (3)  Where  under  ject  to  which  the  property  in  the 
a  contract  of  sale  the  property  in  the  goods  is  to  be  transf erred." 

goods  is  transferred  from  the  seller        l  See  post,  ch.  II. 

to  the  buyer,  the  contract  is  called        2  See  ptost,  Book  II,  ch.  IV. 

a  sale ;  but  where  the  transfer  of  the        3  See  post,  ch.  V« 


CH.  I.]  DEFINITIONS.  [§§  2,  3. 

§2.  Forms  of  bargaining. —  The  bargainings  of  par- 
ties respecting  a  transfer  of  title  may  take  a  variety  of  forms. 
Thus,  (1)  there  may  be  an  agreement  whose  legal  effect  is  the 
immediate  transfer  of  the  absolute  or  general  title.  This  is  a 
sale,  called  sometimes,  for  the  purpose  of  further  distinction,  a 
present  sale,  an  executed  sale,  or  a  bargain  and  sale.  Or  (2) 
there  may  be  an  agreement  whose  legal  effect  is  that  the  title 
shall  not  pass  until  a  future  time,  either  because,  in  the  case 
of  an  ascertained  chattel,  something  remains  to  happen  or  be 
performed  which  the  parties  have  treated  as  precedent,  or  be- 
cause the  particular  chattel  whose  title  is  to  be  so  transferred 
has  not  yet  been  ascertained.  This  is  an  agreement  to  sell, 
called  often,  for  purposes  of  further  distinction,  an  executory 
sale.  It  does  not  become  a  sale  until  the  precedent  event  has 
happened  or  the  condition  has  been  performed.  It  then  be- 
comes a  sale  by  force  of  the  present  agreement  aided  or  com- 
pleted by  the  happening  of  that  event  or  the  performance  of 
that  condition.  Or  (3)  there  may  be  still  another  form  of  agree- 
ment, namely,  the  parties  may  now  agree  that  at  some  future 
time  stated  they  will  come  together  and  enter  into  another 
specified  agreement  either  for  a  then  present  sale  or  for  a  then 
future  sale.  In  this  case  it  is  not  the  intention  of  the  parties 
that  the  title  shall  now  or  then  pass  as  the  legal  result  of  the 
agreement  now  made,  but  only  that  they  will  then  enter  into 
another  specified  contract  which  shall  operate  to  pass  the  title 
either  then  or  at  some  other  time  agreed  upon.  In  other 
words,  adopting  the  distinction  adverted  to  above,  there  may 
be  either  (1)  a  present  sale,  or  (2)  a  present  agreement  for  a 
future  sale,  or  (3)  a  present  agreement  for  a  certain  future 
agreement  to  sell. 

In  all  of  the  forms  of  bargaining  here  referred  to,  however, 
it  is  clear  that  one  result  is  aimed  at,  namely,  the  transfer  of 
the  title,  or  a  sale. 

§  3.  Effect  of  intention. —  "Whether  in  any  given  case 

the  bargainings  of  the  parties  shall  amount  to  a  present  sale, 
or  only  to  an  agreement  to  sell,  depends  often  and  largely 

5 


§  4.]  LAW    OF    SALE.  [BOOK    I. 

upon  the  intention  of  the  parties.  There  are,  however,  cer- 
tain conditions  or  circumstances  which  conclusively  determine 
their  intention,  while  others  raise  a  prima  facie  presumption 
concerning  it.  Thus,  where  the  contract  has  reference  to  a 
chattel  not  then  designated,  it  cannot,  in  the  very  nature  of 
the  case,  fall  within  the  category  of  present  sales,  and  no  title 
will  pass  until  the  chattel  has  been  ascertained.1  But  where 
the  contract  has  reference  to  a  chattel  then  existing,  designated 
and  ready  for  delivery,  a  presumption  arises  that  a  present  sale 
was  contemplated  and  the  title  will  therefore  be  presumed  to 
pass  at  once.2  This  presumption,  however,  is  not  conclusive,  and 
it  may  be  shown  that  the  parties  intended  that  the  title  should 
not  pass  until  some  future  time  or  the  performance  of  some 
future  act,  and  their  intention  will  be  given  effect. 

§  4.  Essential  elements. —  The  essence  of  the  bargain- 
ings concerning  sale  is,  therefore,  the  agreement  or  assent 
of  the  parties  to  the  present  or  future  transfer  of  the  title 
to  a  chattel  either  now  designated  or  afterwards  to  be  ascer- 
tained. Unlike  the  case  of  real  estate,  no  deed,  conveyance  or 
other  formality  is,  in  general,  necessary  to  give  effect  to  the 
intention  of  the  parties ;  when  the  conditions  are  ripe  for  the 
transfer,  the  law  itself  executes  their  intention  by  deeming  the 
transfer  as  made  in  conformity  to  their  assent.  This  assent, 
moreover,  need  not  be  express,  but  may  be  inferred  from  the 
acts  and  conduct  of  the  parties. 

Another  element,  often  appearing  in  conjunction  with  this 
element  of  assent,  is  that  of  the  surrender  of  the  possession  of 
the  chattel  by  the  seller  and  the  assumption  of  that  possession 
by  the  buyer  —  constituting  what  is  commonly  spoken  of  as  the 
delivery  of  the  chattel.  This  element,  though  very  common, 
and  apparently  often  regarded  as  essential,  is  by  no  means  in- 
dispensable; for  there  may  clearly  be  a  completed  sale  of  the 
property,  though  the  seller  retains  the  possession ;  and  there 
may  also  be  a  complete  change  of  possession  without  any  cor- 
responding change  of  title. 

1  See  post,  Book  II,  ch.  IL  ■     2  See  post,  Book  II,  ch.  IV. 


CH.  I.]  DEFINITIONS.  [§  5. 

A  third  element,  also,  often  appearing  with  the  others,  is  that 
of  payment.  But  payment  is  by  no  means  a  necessary  concom- 
itant of  the  transfer  of  the  title ;  for  the  property  may  be  paid 
for  before  the  title  passes,  or  contemporaneously  with  its  trans- 
fer, or  at  any  time  thereafter. 

§  5.  Further  of  the  definition  —  Executory  or  executed 
sales. —  The  word  sale,  remarked  the  supreme  court  of  the 
United  States  in  a  leading  case,1  "  is  a  word  of  precise  legal 
import,  both  at  law  and  in  equity."  Unfortunately,  however, 
this  precision  of  meaning  is  a  condition  rather  to  be  desired 
than  as  yet  actually  attained,  for  it  seems  impossible  for  courts 
and  text- writers  to  agree  either  as  to  the  meaning  of  the  word 
or  as  to  the  essential  elements  of  the  idea  it  represents.  Ac- 
cording to  some,  the  sale  is  the  transfer  of  the  title ;  according 
to  others,  it  is  the  agreement  to  transfer.2  In  the  case  of  the 
agreement  for  a  present  transfer,  where  the  law  executes  the 
agreement  by  deeming  the  title  as  transferred  accordingly, 
it  can  be  matter  of  small  moment  whether  the  word  be  applied 
to  the  agreement  or  to  the  transfer,  because  the  making  of  the 
former  operates  at  once  to  effectuate  the  latter;  but  where  time, 
or  the  performance  of  conditions,  is  to  intervene  between  the 
agreement  and  the  transfer,  it  is  necessary  to  have  appropriate 
words  to  indicate  these  two  ideas. 

It  is,  indeed,  true  here  that  the  effectual  thing  upon  which 
the  law  operates  to  produce  the  transfer  is  still  the  agreement 
of  the  parties ;  but  before  the  law  so  operates,  the  agreement  of 
the  parties  requires  to  be  aided,  supplemented  or  completed  by 
the  lapse  of  time  or  the  performance  of  conditions  precedent, 
and  during  this  interval  the  attitude  or  relation  of  the  parties 
needs  often  to  be  definitely  determined. 

That  the  difference  in  legal^ffect  between  a  mere  agreement 
to  transfer  title  hereafter  an<ra  present  transfer  of  it,  is  radical 

i  Williamson  v.  Berry  (1850),  8  How.  which  the  buyer  pays  or  promises  to 

(49  U.  S.)  495,  544.     "It  means  at  all  pay  to  the  seller  for  the  thing  bought 

times,"  continued  the  court,  "a  con-  and  sold." 

tract  between  parties  to  give  and  to  2  Compare  the  definitions  collected 

pass  rights  of  property  for  money  —  in  the  note  to  the  preceding  section. 


§  6.]  LAW   OF    SALE.  [B0OK    I. 

requires  no  argument  to  establish.  "By  an  agreement  to 
sell,"  it  has  been  said,  "a.  jus  in  personam  is  created;  by  a  sale 
&jus  in  rem  is  transferred.  If  an  agreement  to  sell  be  broken 
the  buyer  has  only  a  personal  remedy  against  the  seller.  The 
goods  are  still  the  property  of  the  seller,  and  he  can  dispose  of 
them  as  he  likes ;  they  may  be  taken  on  execution  for  his  debts, 
and  if  he  becomes  bankrupt  they  pass  to  his  trustee.  .  .  . 
But  if  there  has  been  a  sale,  and  the  seller  breaks  his  engage- 
ment  to  deliver  the  goods,  the  buyer  has  not  only  a  personal 
remedy  against  him,  but  also  the  usual  proprietary  remedies 
against  the  goods  themselves,  such  as  the  action  for  conversion 
and  detinue.  In  most  cases,  too,  he  can  follow  the  goods  into 
the  hands  of  third  parties.  Again,  if  there  be  an  agreement 
for  sale  and  the  goods  perish,  the  loss  falls  on  the  seller;  while, 
if  there  has  been  a  sale,  the  loss,  as  a  rule,  falls  on  the  buyer, 
though  the  goods  have  not  come  into  his  possession." l 

§  6.  Bargain  and  sale. —  The  common  law  clearly  rec- 
ognized these  two  forms  and  applied  to  each  a  well-known 
name.  Thus,  "  if,  by  the  terms  of  the  agreement,  the  property 
in  the  thing  sold  passed  immediately  to  the  buyer,  the  contract 
was  termed  in  the  common  law  'a  bargain  and  sale  of  goods; ' 
but  if  the  property  in  the  goods  was  to  remain  for  the  time 
being  in  the  seller,  and  only  to  pass  to  the  buyer  at  a  future 
time,  or  on  the  accomplishment  of  certain  conditions,  as,  for 
example,  if  it  were  necessary  to  weigh  or  measure  what  was 
sold  out  of  the  bulk  belonging  to  the  vendor,  then  the  contract 
was  called  in  the  common  law  'an  executory  agreement.'"2 

The  attempt  to  distinguish  these  forms  has  frequently  been 
made  by  applying  the  term  "  executed  sale  "  to  the  former  and 
"  executory  sale  "  to  the  latter;  but  this  attempt  has  not  proved 
entirely  satisfactory,  not  only  because  the  terms  have  not  al- 
ways been  used  in  the  same  sense,  but  because  even  the  so- 
called  "executed  sale"  may  be  executed  in  part  only;  that  is, 
so  far  as  to  pass  the  title,  while  it  remains  executory  in  part, 
as  where  delivery  or  payment  is  postponed. 

1  Chalmers  on  Sale,  3.  2  Benjamin  on  Sales  (6th  Am.  ed.),  §  4. 

8 


CH.  I.]  DEFINITIONS.  [8   7. 

The  English  Sale  of  Goods  Act  of  1S93  distinguishes  thus: 
"  Where,  under  a  contract  of  sale,  the  property  in  the  goods  is 
transferred  from  the  seller  to  the  buyer,  the  contract  is  called 
a  sale;  but  where  the  transfer  of  the  property  in  the  goods  is 
to  take  place  at  a  future  time  or  subject  to  some  condition 
thereafter  to  be  fulfilled,  the  contract  is  called  an  agreement 
to  sell.  An  agreement  to  sell  becomes  a  sale  when  the  time 
elapses  or  the  conditions  are  fulfilled  subject  to  which  the 
property  in  the  goods  is  to  be  transferred." l  This  phraseology 
is  probably  as  satisfactory  as  any,  and  is  substantially  that 
herein  adopted. 

Assuming  the  general  meaning  of  the  term  to  be  thus  agreed 
upon,  it  may  be  convenient,  before  going  further,  to  consider 
briefly  certain  special  forms  or  classifications  of  sale,  and  to 
determine  whether  they  lie  within  or  without  the  scope  of  the 
present  treatise.     Thus  — 

§7.  Absolute  and  conditional  sales. —  A  variety  of  classi- 
fications may  be  made,  based  upon  the  absolute  or  conditional 
character  of  the  contract  of  sale.  Thus,  in  accordance  with 
one  basis  of  distinction  —  which  is  really  that  at  the  founda- 
tion of  the  distinctions  made  in  the  preceding  sections  between 
a  sale  and  a  contract  to  sell,  between  executed  and  executory 
sales  —  a  sale  is  said  to  be  absolute  "  which  has  been  completed 
or  perfected ;  a  sale  outright ; "  while  a  conditional  sale  is  one 
which  "takes  effect  or  is  to  become  complete  on  the  perform- 
ance of  a  condition." 2  But  this  so-called  absolute  sale  may  be 
subject  to  a  condition  subsequent,  as  where  there  is  a  "com- 
pleted or  perfected  "  change  of  title,  i.  e.,  "  a  sale  outright," 
subject  to  be  defeated  by  the  non-performance  of  some  annexed 
condition.  There  may  clearly,  also,  be  an  absolute  contract  to 
sell,  as  well  as  a  conditional  contract  to  sell. 

There  is  also  a  form  of  contract,  more  fully  to  be  discussed 

1Sec.  1,  par.  3  and  4    "The  funda-  it  does  not."    Blackwood  v.  Cutting 

mental   difference   between  a  sale,  Packing  Co.  (1888),  76  Cal.  212,  18 

properly  so  called,  and  an  agreement  Pac.  R.  248,  9  Am.  St.  R.  199. 

to  sell  is  that  in  the  former  case  the  2  Anderson's  Law  Dictionary,  915. 
title  passes,  while  in  the  latter  case 


§§8,  9.]  LAW   OF    SALE.  [BOOK    I. 

hereafter,1  popularly  known  as  a  "conditional  sale,"  which  is 
really  a  contract  to  sell  upon  the  performance  of  certain  con- 
ditions by  the  purchaser,  the  most  usual  of  the  conditions  being 
the  payment  of  the  price. 

§  8.  Voluntary  and  forced  sales. —  Sales  are  also  often  fur- 
ther classified  as  voluntary  or  forced.  A  voluntary  sale,  as  its 
name  implies,  is  one  which  is  voluntarily  made,  as  when  it  is 
made  by  or  under  the  authority  of  the  owner  of  the  goods.  A 
forced  or  involuntary  sale  is  one  made,  not  of  the  volition  of 
the  owner,  but  by  the  authority  and  in  pursuance  of  the  law.2 
Of  this  kind  are  the  great  variety  of  sales  made  by  public  offi- 
cers, such  as  sheriffs',  guardians'  and  executors'  sales,  as  well  as 
the  judicial  sales  which  will  be  hereafter  defined. 

A  sale,  though  made  by  a  public  officer,  is  not  a  forced  sale 
when  it  finds  its  authority  in  the  consent  of  the  owner,  as  where 
a  sale  is  made  under  a  power  of  sale  expressly  created  by  a 
mortgage ; 3  or  where  the  owner  consents  to  the  sale  of  that 
which  could  not  lawfully  be  sold  without  his  consent,  as  when 
he  consents  to  the  sale  of  exempt  property  upon  an  execution.4 

§  9.  Judicial  sales. —  Closely  allied  to  the  distinctions  of 
the  last  section  is  the  subject-matter  of  this  one.  A  judicial 
sale  is  one  made  by  virtue  and  in  pursuance  of  an  order  or  de- 
cree of  a  court  of  competent  jurisdiction,  and  by  its  duly  au- 
thorized officer.5 

1  See  post,  Book  II,  oh.  III.  made  under  the  process  of  the  court 

2  In  Sampson  v.  Williamson  (1851),  and  in  the  mode  prescribed  by  law. 
6  Tex.  102,  55  Am.  Dec.  762,  it  is  said:  Civ.  Code  La.,  arts.  2580,  2594,  2595." 
"A  forced  sale  has  been  defined  to  be  3  Patterson  v.  Taylor  (1875),  15  Fla. 
a  sale  made  at  the  time  and  in  the  340.  Cf.  Sampson  v.  Williamson, 
manner  presoi-ibed  by  law,  in  virtue  supra. 

of  an  execution  issued  on  a  judgment  i  Peterson  v.  Hornblower  (1867),  33 

already  rendered  by  a  court  of  com-  Cal.  276. 

petent  jurisdiction:  Dufour  v.  Cam-  8Lawson  v.  De  Bolt  (1881),  78  Ind. 

franc,  11  Mart.  (La.)  610,  13  Am.  Dec.  564;  Terry  v.  Cole  (1885),  80  Va.  701; 

360;  Donaldson  v.  Rouzan,  8  Mart.  N.  Williamson  v.  Berry  (1850),  8  How. 

S.  163;  Macdonough  v.  Elam,  1  La.  (U.  S.)  507;  Moore  v.  Shultz  (1850),  13 

491,  20  Am.  Dec.  284;  or,  in  other  Pa.  St.  98,  53  Am  Dec.  446. 
words,  a  forced  sale  is  one  which  is 

10 


CH.  I.]  DEFINITIONS.  [§  10. 

The  law  governing  judicial  sales  constitutes  a  separate  title 
of  the  law,  and  most  of  it  lies  outside  the  scope  of  this  treatise, 
although  some  aspects  of  it  will  be  considered  hereafter. 

§  10.  Public  and  private  sales. —  A  public  sale  is  one  made 

at  auction  to  the  highest  bidder.     A  private  sale  is  one  not 

made  by  public  auction  but  by  private  negotiation.     Private 

sales  are  always  voluntary,  but  forced  sales  are  always  public. 

A  voluntary  sale  may  also  be  public  at  the  pleasure  of  the 

owner. 

11 


CHAPTER  II. 


TRANSACTIONS  TO  BE  DISTINGUISHED  FROM  SALES. 


§11. 

Purpose  of  this  chapter. 

§38. 

12. 

Sale    to    be    distinguished 

39. 

from  gift. 

40. 

13-15. 

Sale    to    be    distinguished 
from  barter  or  exchange. 

16-18. 

Uses  of  this  distinction 

—  Pleading  —  Statutes  — 

41-42. 

Waiving  tort  —  Construc- 

43-45. 

tion  of  authority. 

19-20. 

Sale    to    be    distinguished 

from  bailment. 

46. 

21-22. 

Change  of  form  or  sub- 

stance as  the  test  —  Illus- 

47. 

trations. 

23. 

Further  illustrations. 

48. 

24 

Intention  of  parties  as 

49. 

the  test. 

50. 

25-26. 

Same  subject  —  Comming- 

ling of  goods. —  Effect  of 

51. 

custom. 

27-30. 

Commingling  with  right  of 

sale  or  use  in  bailee. 

52. 

31. 

Bailment  with  privilege  of 
purchase   to    be    distin- 

guished from  sale. 

53. 

32. 

Option  to  buy  and  pay 

for  chattel  or  pay  for  its 

use. 

54 

33. 

Delivery  of  goods  on  trial  to 
be  purchased  if  approved. 

34.  Sale  with  option  to  return  or 

55. 

pay. 

35. 

Bailment  or  sale,  how  deter- 
mined —  Law  or  fact. 

36. 

Sale  to  be  distinguished 
from  mortgage. 

56. 

37. 

Sale  to  be  distinguished 
from  pledge. 

,  Sale,  not  pledge. 

Pledge,  not  sale. 

Parol  evidence  to  show  ap- 
parent sale  to  be  pledge  or 
mortgage. 

Sale  to  be  distinguished 
from  mere  agency  to  buy. 

Sale  to  be  distinguished 
from  agency  to  sell  or 
"consignment." 

Principles  of  construc- 
tion. 

Illustrations  of  construc- 
tion. 

Agency,  not  sale. 

Sale,  not  agency. 

How  question  deter- 
mined —  Law  or  fact. 

Consignment  of  goods  to 
pay  debt  or  cover  prior 
advances. 

Sale  to  be  distinguished 
from  contract  for  work 
and  labor. 

Sale  to  be  distinguished 
from  compromise  respect- 
ing liens. 

Furnishing  of  food  by  res- 
taurant or  innkeeper  as 
sale. 

Supplying  goods  by  several 
common  owners  to  one  of 
them  —  Social  clubs  —  In- 
toxicating liquors. 

Transfer  of  title  by  opera- 
tion of  law. 


12 


CH.  II.]         TRANSACTIONS   DISTINGUISHED   FROM   SALES.       [§§  11-13. 

§11.  Purpose  of  this  chapter. —  To  be  distinguished  from 
sales  are  many  transactions  bearing  more  or  less  resemblance 
to  sales,  or  partaking  partly  of  the  nature  of  sales  and  partly  of 
some  other  character,  but  which  are  not  sales  in  fact.  Before 
going  further,  therefore,  it  seems  to  be  desirable  to  give  some 
attention  to  additional  distinctions  and  differences,  and  this 
chapter  will  be  devoted  to  that  object. 

§  12.  Sale  to  be  distinguished  from  gift. —  With  this  end 
in  view,  it  may  first  be  noticed  that  a  sale  is  to  be  distinguished 
from  a  gift.  A  sale,  as  has  been  seen,  is  a  transfer  of  title  in 
consideration  of  a  price,  while  a  gift  has  been  defined  as  a  vol- 
untary transfer  of  his  property  by  one  person  to  another  with- 
out any  consideration  or  compensation  therefor.  To  make  it 
valid  as  a  gift,  the  transfer  must  be  executed,  for  the  reason 
that,  there  being  no  consideration  for  it,  no  action  will  lie  to 
enforce  it.  To  consummate  a  gift  there  must  be  such  a  deliv- 
ery by  the  donor  to  the  donee  as  will  place  the  property  within 
the  dominion  and  control  of  the  latter,  with  intent  to  vest  the 
title  in  him.1 

§  13.  Sale  to  be  distinguished  from  barter  or  exchange. 

So  sale  is  to  be  distinguished  from  barter  or  exchange,  though 
the  transactions  are,  in  many  respects,  very  much  alike.  As 
has  been  seen,2  sale  is  the  transfer  in  consideration  of  a  price 
in  money  or  its  equivalent.  Barter,  on  the  other  hand,  is  the 
exchange  of  one  article  for  another,  no  price  in  money  being 
fixed  upon  either.3  If,  therefore,  as  is  said  in  one  case,4  "  prop- 
erty is  taken  at  a  fixed  money  price,  the  transfer  amounts  to  a 
sale,  whether  the  price  is  paid  in  cash  or  in  goods;  "  but  "  where 

i  Gray  v.  Barton  (1873),  55  N.  Y.  68,  3  See  Bouv.  Law  Diet.  (ed.  1897); 

14  Arn.  R.  181;  Parkinson  v.  State  Commonwealth  v.  Davis   (1876),   12 

(1859),  14  Md.  184,  74  Am.  Dec.  522;  Bush    (Ky.),    240;    Cooper    v.   State 

Commonwealth  v.  Packard  (1855),  5  (1881),  37  Ark.  412. 

Gray  (Mass. ),  101 ;  Beaver  v.  Beaver  4  Picard  v.   McCormick   (1862),  11 

(1889),  117  N.  Y.  421,  15  Am.  St.  R.  Mich.  68;  Huff  v.  Hall  (1885),  56  Mich. 

531,  22  N.  E.  R.  940.  456,  23  N.  W.  R.  88. 

2  See  ante,  §  1. 

13 


§§  14,  15.]  LAW   OF    SALE.  [BOOK   I. 

one  chattel  is  exchanged  for  another,  no  price  being  attached, 
it  is  not  a  sale." l 

§  14.  .  In  many  of  the  cases  the  price  was  to  be  paid 

partly  in  cash  and  partly  in  goods,  but  this  was  a  mere  acci- 
dent, and  is  not  the  criterion.  Thus,  where  a  horse  was  trans- 
ferred for  the  sum  of  $50,  and  the  owner  received  in  exchange 
three  notes  of  third  persons  amounting  to  $49.14,  and  also 
eighty-six  cents  in  money,  the  transaction  was  held  to  be  a 
sale.  "  In  the  absence  of  express  evidence  that  an  exchange 
only  was  intended,"  said  the  court,2  "a  sale  might  justly  be  in- 
ferred from  the  fact  that  the  trade  was  governed  by  a  fixed 
price  for  the  horse,  an  agreed  price  being  essential  to  a  proper 
bargain  or  sale,  but  altogether  needless  in  the  case  of  a  mere 
exchange.  There  the  commodities  exchanged,  whatever  be 
their  supposed  value,  are  mutually  received  as  equivalents  for 
each  other.  It  must  be  taken,  then,  that  the  horse  was  sold  to 
the  defendant  at  the  price  of  $50."  So  where  the  plaintiffs 
delivered  to  the  defendant,  at  various  times,  dry-goods  out  of 
their  store  to  a  large  amount,  in  consideration  of  which  and  in 
payment  whereof  the  defendant  agreed  to  deliver  to  the  plaint- 
iffs, on  or  before  a  day  specified,  nails  at  a  price  per  pound 
agreed  upon,  it  was  held  to  be  a  sale  of  the  d^-goods  on  credit 
to  be  paid  for  in  nails,  and  neither  a  purchase  of  the  nails,  nor 
an  exchange  of  the  dry-goods  for  the  nails.3 

§  15.  .  But  where,  on  the  other  hand,  plaintiff  delivered 

wood  to  the  defendant,  who  agreed  to  return  a  like  amount  to 
the  plaintiff  whenever  he  should  desire  it,  it  was  held  to  be  a 
mere  exchange,  and  not  a  sale ; 4  and  so  where  a  filly,  which 
had  been  bought  and  was  valued  at  a  given  price,  was  ex- 
changed for  another  horse,  it  was  held  not  to  be  a  sale.5 

i  Fuller  v.  Duren  (I860),  36  Ala.  73,        SHerrick  v.  Carter  (1865),  56  Barb. 
76  Am.  Dec.  318.  (N.  Y.)  41. 

2  Loomis  v.  Wainwright  (1818),  21        4  Mitchell  *.  Gile  (1841),  12  N.  H.  390. 
Vt.  520.  5  Fuller  v.  Duren  (1860),  36  Ala.  73, 

76  Am.  Dec.  318. 
14 


ch/ii.]       transactions  distinguished  ekom  sales.     [§§16,17. 

§16.  Uses  of  distinction  — Pleading.— This  distinc- 
tion between  sale  and  barter  usually  becomes  material  rather 
as  a  question  of  pleading  than  otherwise,  the  rule  being  that  in 
the  case  of  the  mere  exchange,  where  no  value  has  been  agreed 
upon,  an  action  must  be  based  upon  the  special  contract;1 
while  if  a  price  has  been  fixed  and  the  transaction  amounts  to 
a  sale,  an  action  may  be  maintained  upon  the  basis  of  goods 
sold.2 

It  also  becomes  material  occasionally  to  determine  whether 
a  barter  is  to  be  deemed  a  sale  within  the  purview  of  statutes 
using  the  latter  word.  In  Indiana  a  barter  has  been  held  not 
to  be  a  sale  within  the  meaning  of  a  statute  regulating  the 
sales  of  intoxicating  liquors; 3  and  the  same  ruling  was  made  by 
the  court  in  Alabama  when  construing  a  penal  statute  against 
the  sale  of  slaves  without  a  license ; 4  but  in  Massachusetts  a 
contrary  result  was  reached  with  reference  to  a  statute  against 
the  sale  of  liquor,  the  court  saying  that  "the  prohibition  of 
sales,  in  the  technical  sense  of  that  word,  would  be  of  little 
effect  if  the  trade  was  left  open  to  be  carried  on  in  other 
modes." 5  In  the  same  state  also  a  contract  for  the  exchange 
of  land  for  goods  and  money  was  held  to  be  equivalent  to  a 
sale  within  the  contemplation  of  the  statute  of  frauds." 

§  17.  Waiving  tort  —  Construction  of  authority.— 

The  distinction  may  be  of  importance  also  with  reference  to  the 
right  of  one  whose  goods  have  been  wrongfully  sold  to  waive 

i  See  Mitchell  v.  Gile  (1841),  12  N.  without  legal  foundation.    Travis  on 

H.  390;  Slayton  v.  McDonald  (1881),  73  Sales,  p.  7  et  seq.,  and  notes. 

Me.  50;  Vail  v.  Strong  (1838),  10  Vt.  3  Stevenson  v.  State  (1879),  65  Ind. 

457;  Beirne  v.  Dunlap  (1837),  8  Leigh  409;  Massey  v.  State  (1881),  74  Ind. 

(Va.),  514.  368. 

2  See   Forsyth  v.  Jervis  (1816),   1  *Gunte*  v.  Lecky  (1857),  30  Ala. 

Stark.  437,  2  Eng.  Com.  L.  169;  Porter  591. 

v.  Talcott  (1823),  1  Cow.  (N.  Y.)  359;  5  Howard  v.  Harris  (1864),  8  Allen 

Hands  v.  Burton  (1808),  9  East,  349;  (Mass.),  297;  Commonwealth  v.  Clark 

Way  v.  Wakefield  (1835),  7  Vt.  223.  (1860),  14  Gray  (Mass.),  367. 

Mr.  Travis,  who  collates  many  other  6  Do vvling  v.  McKenney  (1878),  124 

cases,  contends  that  the  whole  dis-  Mass.  478. 
tinction  between  sale  and  barter  is 

15 


§  18.]  LAW   OF    SALE.  [BOOK    I. 

the  tort  and  sue  in  assumpsit.  "  The  doctrine  of  waiving  a 
tort  and  bringing  assumpsit,"  it  is  said  in  such  a  case,1  "  is  con- 
fined to  cases  where  the  defendant  has  disposed  of  the  plaint- 
iff's property  and  received  either  money  or  some  article  or 
thing  as  money.2  If  the  property  has  been  sold,  it  makes  no 
difference  whether  the  price  is  received  in  money  or  in  a  chat- 
tel at  an  estimated  price  for  money.3  But  there  is  a  material 
distinction  between  a  sale  and  an  exchange  or  a  bargain  of 
barter;  and  where  one  chattel  is  exchanged  for  another,  no 
price  being  attached,  it  is  not  a  sale." 

Attention  must  also  be  paid  to  this  distinction  in  the  con- 
struction of  authorities,  it  being  clear,  for  example,  that  an  au- 
thority to  sell  goods  would  not  ordinarily  justify  an  exchange 
of  them  for  other  goods.4 

§  18.  Otherwise  distinction  not  usually  material. — 

In  most  other  cases,  however,  the  distinction  is  of  little  practi- 
cal importance.  "  The  distinction  between  a  sale  and  exchange 
of  property,"  said  the  court  in  Massachusetts,5  "  is  rather  one 
of  shadow  than  of  substance.  In  both  cases  the  title  to  prop- 
erty is  absolutely  transferred,  and  the  same  rules  of  law  are 
applicable  to  the  transaction,  whether  the  consideration  of  the 
contract  is  money  or  by  way  of  barter.  It  can  make  no  essen- 
tial difference  in  the  rights  and  obligations  of  parties  that 
goods  and  merchandise  are  transferred  and  paid  for  by  other 
goods  and  merchandise  instead  of  by  money,  which  is  but  the 
representative  of  value  or  property." 

i  Fuller  v.  Duren  (1860),  36  Ala.  73,  3  Citing  Arms  v.  Ashley,  4  Pick. 

76  Am.  Dec.  318.  (Mass.)  71;  Mason  v.  Waite,  17  Mass. 

2  Citing  Pike  v.  Bright,  29  Ala  336;  560;  Stewart  v.  Conner,  9  Ala.  813; 

Crow  v.  Boyd,  17  Ala.  51;  Strother  v.  Cameron  v.  Clarke,  11  Ala.  259. 

Butler,  17  Ala.  733.    See  also  Watson  *  See  Mechem  on  Agency,  §  352, 

v.  Stever  (1872),  25  Mich.  386;  Woods  where    this    subject    is    fully    con- 

v.  Ay  res  (1878),  39  Mich.  345;  Fiquet  sidered. 

v.  Allison  (1864),  12  Mich  330;  Coe  v.  ^ln  Com.  v.  Clark,  supra.    See  also 

Wagar  (1879),  42  Mich.  52;  McLaugh-  Hudson  Iron  Co.  v.  Alger  (1873),  54 

lin  v.  Salley  (1881),  46  Mich.  219;  Nel-  N.  Y.  173;  First  Nat.  Bank  v.  Reno 

son  v.  Kilbride  (1897),  113  Mich.  637,  (1887),  73  Iowa,  145.  34  N.  W.  R.  796. 
71  N.  W.  R  1089. 

16 


CH.  II.]         TRANSACTIONS   DISTINGUISHED   FROM    SALES.       [§§  19,  20. 


§  19.  Sale  to  be  distinguished  from  bailment. —  The  con- 
tract of  sale,  whether  executed  or  executory,  is  to  be  distin- 
guished from  a  mere  bailment.  The  contract  of  sale,  as  has 
been  seen,  contemplates  the  transfer  to  the  purchaser  of  the 
absolute  title  to  the  property  for  a  price  in  money  or  its  equiv- 
alent. The  contract  of  bailment,  on  the  other  hand,  contem- 
plates the  transfer  of  a  special  property  only,  the  bailor  retain- 
ing all  of  the  time  the  general  property  in  the  goods  which 
are  to  be  returned  to  him  or  his  order,  either  in  their  original 
form  or  in  such  other  form  or  equivalent  as  the  parties  have 
agreed  upon. 


§20. 


"  It  is  of  the  essence  of  a  contract  of  sale,"  it  is 


said  in  a  recent  case,1  "  that  there  should  be  a  buyer  and  a 
seller,  a  price  to  be  given  and  taken,  an  agreement  to  pay  and 


1  Union  Stock  Yards  v.  Western 
Land  Co.  (1893),  59  Fed.  R.  49,  18  U.  S. 
App.  438,  7  C.  C.  A.  660.  The  facts 
here  were  as  follows:  Under,  con- 
tracts between  H.  and  a  cattle  com- 
pany, H.  agreed  to  transport  certain 
cattle  to  his  farm  in  Missouri  at  his 
own  expense,  and  there  feed  them, 
that  they  might  be  profitably  mar- 
keted by  the  cattle  company;  and  he 
covenanted  that  they  should  not  de- 
teriorate in  flesh  or  condition,  and 
bound  himself  to  pay  at  an  agreed 
valuation  for  all  losses  of  the  cattle 
arising  from  "  death,  disease,  escape, 
theft,  or  any  cause  whatsoever."  H. 
was  to  employ,  at  his  own  expense,  a 
herdsman  selected  by  the  cattle  com- 
pany. The  pasturage  was  to  extend 
over  a  period  of  some  fourteen  weeks, 
during  which  time  the  cattle  com- 
pany should  ship  the  cattle  to  mar- 
ket or  sell  them  in  pasturage.  H. 
was  to  receive  in  full  compensation 
for  his  services  and  expenditures  all 
moneys  realized  from  the  sale  of  the 
cattle  by  the  cattle  company  in  ex- 
cess of  $36.05  per  head  after  deduct- 


ing the  expenses  of  shipment  and 
sale,  and  he  also  waived  any  lien 
upon  the  cattle  for  his  own  services. 
H.  received  the  cattle  under  the  con- 
tracts, and  subsequently  gave  a  chat- 
tel mortgage  on  certain  of  the  cattle 
and  parted  with  the  possession  of  the 
same.  The  cattle  company  thereafter 
brought  an  action  in  replevin  to  re- 
cover possession  of  certain  of  the 
cattle  which  H.  had  mortgaged. 
Held,  (1)  that  the  contracts  consti- 
tuted a  bailment  of  personal  prop- 
erty, and  that  H.  was  a  mere  agister 
with  compensation  for  service  con- 
tingent upon  the  price  obtained  upon 
the  sale  of  the  cattle;  (2)  that  in  the 
contracts  there  was  wanting  an 
agreement  to  pay  a  price  for  the  cat- 
tle, which  is  an  essential  element  of 
a  sale;  that  there  was  no  conditional 
sale  of  the  cattle  to  H.,  because  in 
no  event  was  H.  to  be  invested  with 
'the  title,  and  in  any  event  he  was  to 
return  the  cattle  to  the  cattle  com- 
pany, which,  and  not  H.,  had  the 
power  of  disposition  of  the  cattle; 
(3)  that  as  it  may  well  comport  with 


17 


§  20.] 


LAW    OF    SALE. 


[BOOK    I. 


an  agreement  to  receive.  Sale  is  a  word  of  precise  legal  im- 
port. •  It  means  at  all  times  a  contract  between  parties  to  give 
and  to  pass  rights  of  property  for  money,  which  the  buyer 
pays  or  promises  to  pay  to  the  seller  for  the  thing  bought  and 
sold.' l  A  conditional  sale  implies  the  delivery  to  the  purchaser 
of  the  subject-matter,  the  title  passing  only  upon  the  perform- 
ance of  a  condition  precedent,  or  becoming  reinvested  in  the 
seller  upon  failure  to  perform  a  condition  subsequent.  It  is 
not  infrequently  a  matter  of  difficulty  to  accurately  distinguish 
between  a  conditional  sale  and  a  bailment  of  property.  The 
border  line  is  somewhat  obscure  at  times.  The  difficulty  must 
be  solved  by  the  ascertainment  of  the  real  intent  of  the  con- 
tracting parties  as  found  in  their  agreement.  There  are,  how- 
ever certain  discriminating  earmarks,  so  to  speak,  by  which 
the  two  may  be  distinguished.  It  is  an  indelible  incident  to  a 
bailment  that  the  bailor  may  require  restoration  of  the  thing 
bailed.2  If  the  identical  thing,  either  in  its  original  or  in  an 
altered  form,  is  to  be  returned,  it  is  a  bailment.3    In  a  contract 


a  bailment  of  property  that  the 
bailee  assumes  the  character  of  in- 
surer of  the  thing  bailed,  while  it 
remains  in  his  possession,  the  clause 
in  the  contract  providing  that  H. 
should  be  liable  for  all  losses  of  said 
cattle  "  arising  from  death,  disease, 
escape,  theft,  or  any  cause  whatso- 
ever," read  in  connection  with  other 
provisions  of  the  contract,  with 
which  it  was  necessary  to  read  it  in 
order  to  judge  of  its  meaning,  im- 
posed upon  H.,  in  the  care  of  the  cat- 
tle while  in  his  custody,  the  liability 
of  an  insurer,  and  did  not,  when  so 
read  in  connection  with  other  clauses 
of  the  contract,  make  the  transac- 
tion one  of  conditional  sale;  (4)  that 
there  was  nothing  in  the  contract* 
which  imposed  upon  H.  accountabil- 
ity for  depreciation  in  market  value; 
(5)  that,  even  if  H.  had  an  option 
under  the  contract  to  pay  to  the  cat- 


tle company  a  stated  sum  per  head 
for  the  cattle,  and  could  so  obtain 
title  to  them,  there  was  no  obliga- 
tion on  his  part  to  do  so,  since  an 
option  is  not  a  sale,  and  possession  of 
property  under  an  option  to  pur- 
chase, when  possession  is  delivered 
for  service  to  be  rendered  the  thing 
bailed,  does  not  transmute  into  a 
conditional  sale  that  which  is  other- 
wise a  bailment;  and  (6)  that  there 
was  no  design  evidenced  by  the  con- 
tracts, read  in  the  light  of  the  sur- 
rounding circumstances,  to  avoid 
sections  2505,  2507  and  2508  of  the 
Revised  Statutes  of  Missouri  of  1879. 

1  Williamson  v.  Berry,  8  How.  495, 
544. 

2  South  Australian  Ins.  Co.  v.  Ran- 
dell,  L.  R.  3  P.  C.  101;  Jones  on  Bail- 
ment (2d  ed.),  pp.  64,  102;  2  Kent's 
Com.,  p.  589. 

3  Powder  Co.  v.  Burkhardt,  97  U.  S. 


18 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM    SALES.  [§  21. 

of  sale  there  is  this  distinguishing  test  common  to  an  absolute 
and  to  a  conditional  sale,  that  there  must  be  an  agreement,  ex- 
press or  implied,  to  pay  the  purchase  price.  In  a  bailment,  if 
a  bailment  for  hire,  there  must  be  payment  for  the  use  of  the 
thing  let  or  bailed.1  If  service  is  to  be  rendered  the  subject- 
matter  of  the  bailment,  there  must  be  compensation  for  the 
service  unless  the  bailment  be  a  mandate.  In  a  contract  of 
condition  sale  the  agreement  to  pay  the  purchase  price  may 
be  masked  so  as  to  give  it  the  appearance  of  an  agreement  to 
pay  for  use.  In  such  case  the  court  must  ascertain  the  real 
intention  of  the  contracting  parties  from  the  whole  agreement 
read  in  the  light  of  the  surrounding  circumstances."  Here, 
too,  as  in  other  cases  already  considered,  the  name  which  the 
parties  have  seen  fit  to  apply  to  their  contract  is  not  at  all  con- 
clusive. Each  contract  is  to  be  construed  according  to  its  true 
tenor  and  legal  effect  regardless  of  particular  expressions  or 
peculiar  names  applied.2 

§  21. Change  of  form  or  substance  as  the  test  —  Illus- 
trations.—  Where  the  identical  article  delivered  is  to  be  re- 
turned in  its  original  form,  no  difficulty  in  discrimination  arises ; 
but  where,  as  is  common,  the  form  of  the  original  article  is  to 
be  changed,  or  something  else  is  to  be  returned  as  a  substitute 
for  it,  difficulties  arise.  In  a  late  case3  it  is  said:  "The  f mula- 
tto, 116;  Sturm  v.  Boker,  150  U.  S.  elusive  that  the  transaction  was  a 
312,  329.  sale  and  not  a  bailment,  especially 

i  Hen-ford  v.  Davis,  102  U.  S.  235.     in  view  of  the  fact  that  the  word 
2  Thus,  in  Weiland  v.  Sun  wall  (1895),     "  Stored  "  was  stamped  on  the  ticket 
63  Minn.  320,  65  N.  W.  R.  628,  tick-    at  the  time  it  was  issued.    The  evi- 
ets  issued  on  the  receipt  of  wheat    dence  was    sufficient    to  justify  a 
were  in  the  following  form:  "  Ticket    finding  that  these  transactions  were, 

No.  .     Bought  ,  account  of    as  between  the  depositors  and  the 

,   or  bearer,   bushels,    elevator   company,    bailments,    and 

No. wheat,     [Signed] ,    not  sales,  so  that  the  wheat  remained 

New  Prague  Elevator  Company."  the  property  of  the  former."  See  also 
But  stamped  on  the  ticket  were  the  Irons  v.  Kentner  (1879),  51  Iowa,  88, 
words  "Stored.  Not  transferable."  33  Am.  R  119,  50  N.  W.  R  73. 
Said  the  court:  "The  fact  that  these  ^Bretz  v.  Diehl  (1888),  117  Pa.  St. 
tickets  commenced  with  the  printed  589,  11  Atl.  R  893,  2  Am.  St.  R  706. 
word  "  Bought "  is  by  no  means  con-        In  Mallory  v.  Willis  (1850;,  4  N.  Y. 

19 


21.] 


LAW    OF    SALE. 


[book 


mental  distinction  between  a  bailment  and  a  sale  is,  that  in 
the  former  the  subject  of  the  contract,  although  in  an  altered 
form,  is  to  be  restored  to  the  owner,  whilst  in  the  latter  there 
is  no  obligation  to  return  the  specific  article;  the  party  receiv- 


85,  Chief  Justice  Bronson  states  the 
distinction  thus:  "Where  the  iden- 
tical thing  delivered,  although  in  an 
altered  form,  is  to  be  restored,  the 
contract  is  one  of  bailment,  and  the 
title  to  the  property  is  not  changed; 
but  when  there  is  no  obligation  to 
restore  the  specific  article,  and  the 
receiver  is  at  liberty  to  return  an- 
other thing  of  equal  value,  he  be- 
comes a  debtor  to  make  the  return, 
and  the  title  to  the  property  is 
changed:  it  is  a  sale." 

In  Powder  Co.  v.  Burkhardt  (1877), 
97  U.  S.  110,  the  facts  were  that  an 
incorporated  company  entered  into 
a  contract  with  D.,  the  owner  of  let- 
ters-patent for  an  explosive  com- 
pound called  "  dualin,"  whereby  he 
undertook  to  manufacture  it,  as  re- 
quired by  the  company  from  time  to 
time,  in  quantities  sufficient  to  sup- 
ply the  demand  for  the  same,  and  all 
sales  produced  or  effected  by  the 
company.  The  contract  provided  that 
all  goods  he  manufactured  should  be 
consigned  to  the  company  for  sale, 
and  all  orders  he  received  should  be 
transferred  to  it  to  be  filled;  that  the 
parties  should  equally  share  the  net 
profits  arising  from  such  sales,  and 
equally  bear  all  losses  by  explosion, 
or  otherwise,  so  far  as  the  loss  of  the 
dualin  was  concerned,  but  the  com- 
pany assumed  no  risk  on  D.'s  build- 
ing or  machinery;  that  the  company 
should  semi-monthly  advance  to  him, 
on  his  requisition,  a  stipulated  sum, 
for  paying  salaries,  for  labor,  and  for 
his  personal  account,  and  such 
further  reasonable  sums  as  might  be 


required  for  incidental  expenses  of 
manufacture;  and  should  furnish 
him  all  the  raw  materials  needed  to 
manufacture  said  explosive  in  quan- 
tities sufficient  to  supply  the  demand 
created  by  the  company,  or  should 
advance  the  money  necessary  to  pur- 
chase them  —  the  said  advances  and 
the  cost  of  such  materials  to  be 
charged  to  him  against  the  manu- 
factured goods  to  be  by  him  con- 
signed to  the  company.  Certain  of 
the  materials  which  had  been  fur- 
nished him  under  the  contract,  and 
others  which  he  had  purchased  with 
money  advanced  by  the  company, 
were  seized  upon  an  execution  sued 
out  on  a  judgment  against  him  in 
favor  of  a  third  party.  The  company 
then  brought  this  action  to  recover 
for  the  wrongful  conversion  of  the 
materials  so  seized.  Held,  that  the 
delivery  of  them  by  the  company  to 
D.  did  not  create  a  bailment,  but 
that  upon  such  delivery  they,  as 
well  as  those  purchased  by  him  with 
the  money  so  advanced,  became  his 
sole  property  and,  as  such,  were  sub- 
ject to  the  execution.  Said  the  court : 
"  The  plaintiff  in  error  contends  that 
the  present  is  the  case  of  a  bailment 
and  not  of  a  sale  or  a  loan  of  the 
goods  and  money  to  Dittmar.  It  is 
contended  that  the  question  of  bail- 
ment or  not  is  determined  by  the 
fact  whether  the  identical  article 
delivered  to  the  manufacturer  is  to 
be  returned  to  the  party  making  the 
advance.  Thus,  where  logs  are  de- 
livered to  be  sawed  into  boards,  or 
leather  to  be  made  into  shoes,  rags 


20 


CII.  II. J  TRANSACTIONS    DISTINGUISHED    FROM    SALES. 


[§  22. 


ing  it  is  at  liberty  to  return  some  other  thing  of  equal  value  in 
place  of  it." 

Thus,  a  delivery  of  wheat  "  to  be  manufactured  into  flour," 
of  which  flour  one  barrel  is  to  be  returned  to  the  depositor  for 
every  four  and  one-quarter  bushels  of  wheat,  is  a  bailment  for 
hire;  though  the  form  of  the  original  wheat  is  to  be  changed, 
it  is  still  the  original  wheat  in  its  altered  form  which  is  to  be 
returned.1 

§  22.  On  the  other  hand,  a  delivery  of  wheat  for  which 

the  depositor  is  to  receive  one  barrel  of  flour  for  every  four 
and  one-quarter  bushels  of  wheat,  the  party  receiving  being  at 
liberty  to  deliver  any  flour,  whether  made  from  that  identical 
wheat  or  not,  is  not  a  bailment  but  a  sale.2  In  a  case 3  of  the 
latter  nature,  the  court  said :  "  There  is  here  no  agreement  to 
restore  to  him  property  of  like  quality,  nor  is  there  any  agree- 


into  paper,  olives  into  oil,  grapes  into 
wine,  wheat  into  flour,  if  the  product 
of  the  identical  articles  delivered  is 
to  be  returned  to  the  original  owner 
in  a  new  form,  it  is  said  to  be  a  bail- 
ment, and  the  title  never  vests  in  the 
manufacturer.  If,  on  the  other  hand, 
the  manufacturer  is  not  bound  to  re- 
turn the  same  wheat  or  flour  or 
paper,  but  may  deliver  any  other  of 
equal  value,  it  is  said  to  be  a  sale  or 
a  loan,  and  the  title  to  the  thing  de- 
livered vests  in  the  manufacturer. 
We  understand  this  to  be  a  correct 
exposition  of  the  law.  Pierce  v. 
Schenck,  3  Hill  (N.  Y.),  28;  Norton  v. 
Woodruff,  2  N.  Y.  153;  Mallory  v. 
Willis,  4  id.  76;  Foster  v.  Pettibone, 
7  id.  433." 

In  Chickering  v.  Bastress  (1889), 
130  111.  206,  22  N.  E.  R.  542,  17  Am. 
St.  R.  309,  the  court  says:  "It  is  well 
settled  in  this  state  that  when  the 
identical  thing  delivered  is  to  be  re- 
stored in  the  same  or  an  altered  form, 
the  contract  is  one  of  bailment  and 


the  title  to  the  property  is  not 
changed ;  but  when  there  is  no  obli- 
gation to  restore  the  specific  article, 
and  the  receiver  is  at  liberty  to  re- 
turn another  thing  of  equal  value,  or 
the  money  value,  he  becomes  a  debtor 
to  make  a  return,  and  the  title  to  the 
property  is  changed  — it  is  a  sale. 
Lonergan  v.  Stewart,  55  111.  49,  and 
the  authorities  there  cited;  Richard- 
son v.  Olmstead,  74  id.  213." 

i  Foster  v.  Pettibone  (1852),  7  N.  Y. 
433,  57  Am.  Dec.  530;  Slaughter  v. 
Green  (1821),  1  Rand.  (Va.)  3,  10  Am. 
Dec.  488;  Inglebright  v.  Hammond 
(1850),  19  Ohio,  337,  53  Am.  Dec.  430; 
Mallory  v.  Willis  (1850),  4  N.  Y.  85. 

a  Woodward  v.  Semans  (1890),  125 
Ind.  330,  25  N.  E.  R.  444,  21  Am.  St. 
R.  225;  Smith  v.  Clark,  21  Wend. 
(N.  Y.)  83,  34  Am.  Dec.  213.  (Sey- 
mour v.  Brown,  19  John.  (N.  Y.)  44, 
contra,  is  overruled.)  Baker  v.  Wood- 
ruff, 2  Barb.  (N.  Y.)  523;  Norton  v. 
Woodruff,  2  N.  Y.  153. 

3  Woodward  v.  Semans,  supra. 


21 


§  23.]  LAW   OF    SALE.  [BOOK   I. 

ment  to  restore  to  him  the  product  of  the  property.  The  agree- 
ment is  to  yield  property  in  exchange  for  property,  and  this  is 
essentially  a  contract  of  sale.  The  appellees  were  entitled  to 
a  designated  quantity  of  flour  and  bran  for  each  bushel  of 
wheat  delivered  by  them,  but  they  were  not  entitled  to  the 
flour  and  bran  produced  from  the  particular  wheat  delivered 
by  them  to  the  appellants.  There  was  therefore  no  undertaking 
to  restore  the  wheat  either  in  its  original  form  or  in  an  altered 
form." 

In  cases  of  the  first  class  it  would  be  immaterial,  as  will  be 
seen,1  that  the  miller,  by  virtue  of  a  custom  or  agreement,  was 
to  mingle  the  wheat  with  other  of  like  kind  and  quality  from 
the  mass  of  which  the  grinding  is  to  be  done,  so  long  as  the 
mass  remains  and  the  depositor  has  the  right  to  demand  the 
return  of  a  like  amount  out  of  the  mass.2 

§23.  Further  illustrations. —  Many  other  cases  pre- 
sent like  considerations.  Thus  a  delivery  of  logs,  to  be  cut 
into  boards  of  which  each  party  is  to  have  half,  is  a  bailment 
and  not  a  sale,3  as  is  also  an  agreement  to  deliver  milk  to  be 
made  into  cheese,  even  though  the  bailee  may  also  be  author- 
ized to  sell  the  product  as  the  agent  of  the  owner.4    But  where 

1  See  following  sections.  an  altered  form,  would  be  required 

2  Slaughter  v.  Green,  1  Rand.  (Va.)  to  be  delivered,  and  would  be  the 
3,  10  Am.  Dec.  488;  Inglebright  v.  property  of  the  owners  of  the  milk. 
Hammond,  19  Ohio,  337,  53  Am.  Dec.  As  soon  as  the  milk  was  converted 
430.  into  butter  and  cheese,  Kilbourne's 

3  Pierce  v.  Schenck  (1842),  3  Hill  (the  bailee's)  power  to  sell  as  a  factor 
(N.  Y.),  28;  Gleason  v.  Beers  (1887),  attached,  and  he  took  the  same  as  the 
59  Vt.  581,  10  AtL  R.  80.  agent  of  the  milk  owners,  holding  the 

4  First  National  Bank  v.  Schween  title  for  them  until  a  sale  was  ef- 
(1889),  127  111.  573,  20  N.  E.  R.  681,  11  fected.  This  may  be  more  clearly 
Am.  St.  R.  174.  After  referring  to  apparent  by  supposing  a  revocation 
the  distinction  laid  down  in  Lonergan  of  his  authority  to  sell.  Can  there 
v.  Stewart,  55  111.  48,  substantially  as  be  any  doubt  as  to  the  legal  owner- 
stated  in  the  text,  the  court  says:  "  If  ship  of  the  butter  and  cheese  in  such 
the  power  of  sale  conferred  had  not  case?  It  is  true,  the  manufacturer 
been  given,  there  can  be  no  doubt  might  have  held  it  until  his  charges 
that  the  owners  of  the  milk  would  for  its  manufacture  were  paid;  but, 
have  owned  its  product.  In  such  subject  to  his  lien  for  his  commission, 
case,  the  identical  thing,  though  in  it  would  have  belonged  to  the  party 

22 


CH.  II.]  TRANSACTIONS   DISTINGUISHED   FROM    SALES.  [§  23. 

the  milk  contributed  by  the  various  owners  was  thrown  into 
a  common  mass,  made  into  cheese,  sold  by  a  committee  of  the 
factory,  and  then  the  milk  was  paid  for  at  the  price  produced 
by  the  cheese,  allowing  ten  and  a  half  pounds  of  milk  to  one 
pound  of  cheese,  and  deducting  the  cost  of  manufacturing,  the 
court  said :  "  There  was  evidently  no  bailment  or  agency  as  to 
the  particular  milk  delivered.  By  the  very  terms  of  the  agree- 
ment, it  was  to  be  mixed  and  confused  in  part  or  in  whole 
with  other  milk  indefinitely.  It  was  a  sale  of  the  milk  to  the 
factory,  for  which  they  were  to  pay  at  a  certain  time  and  in 
a  certain  manner.  It  is  not  to  be  distinguished  from  Jenkins 
v.  Eichelberger}  There  the  contract  was  to  deliver  hides  to  a 
tanner  at  a  certain  price  —  the  hides  when  tanned  to  be  re- 
turned to  the  person  who  had  delivered  them,  to  be  sold  by 
him,  and  out  of  the  proceeds,  after  deducting  the  price  at  which 
they  had  been  delivered,  the  balance  to  be  paid  to  the  tanner. 
It  was  evidently  a  contrivance  by  which  the  hides  were  to  be 
protected  from  the  creditors  of  the  tanner,  but  this  court  held 
it  to  be  a  sale.  The  same  doctrine  was  maintained  in  Prich- 
ett  v.  Cook?  It  is  true  in  both  these  cases  the  question  was  as 
to  creditors  of  the  manufacturer.  But  upon  the  facts  .  .  . 
it  does  not  appear  that  there  was  anything  to  qualify  the  effect 
of  the  absolute  delivery  of  the  milk,  to  be  used  and  mixed  in- 
discriminately with  other  milk,  and  for  which  the  party  was 
afterwards  to  receive  a  credit  at  a  certain  rate  (and  he)  had 
then,  from  the  delivery  of  the  milk,  a  mere  demand  for  the 
price  of  its  product  as  agreed  upon." 3 

Under  facts  quite  similar  to  those  in  Jenkins  v.  Eichelberger, 
the  court  in  Massachusetts  found  a  different  intention  to  exist, 

who  employed  him  to  manufacture  proceeds  of  the  sales  thereof  to  be 

it."   See  also  Jensen  v.  Bowles  (1896),  divided  in  a  certain  ratio  between 

8  S.  Dak.  570,  67  N.  W.  R.  627.  the  farmers  and  the  manufacturers. 

A  mere  bailment,  and  not  a  sale  Sattler  v.  Hallock  (1899).  160  N.  Y. 

which  passes  title,  is  made  by  a  con-  291,  54  N.  E.  R.  667,  46  L.  R.  A.  679. 

tract  whereby  farmers  deliver  prod-  i  4  Watts  (Pa.),  121, 28  Am.  Dec.  691. 

uce  at  a  factory  owned  by  them  to  - 12  R  F.  Smith  (62  Pa.),  193. 

be  manufactured  into  pickles,  sauer-  3  Butterfield  v.  Lathrop  (1872),  71 

kraut  and  other  similar  articles,  the  Pa.  St.  225. 

23 


§  24.]  LAW    OF    SALE.  [BOOK   I. 

and  held  that  a  delivery  of  leather  to  a  manufacturer  to  be 
made  into  boots  which  were  to  be  returned  to  the  bailor,  who 
was  to  sell  them  and  give  to  the  manufacturer  all  over  the 
cost  of  the  leather  and  five  per  cent,  thereon,  constituted  a 
bailment  and  not  a  sale.1  A  fortiori  is  it  so  where  leather  is 
delivered  to  be  made  into  shoes  and  returned  to  the  owner  of 
the  leather,  even  though  the  manufacturer  was  to  supply  an- 
other kind  of  leather  which  was  needed  in  the  manufacture.2 

§  24. Intention  of  parties  as  the  test. — Where,  though 

the  parties  use  language  on  its  face  indicating  a  sale,  their  real 
intention  is  that  of  bailment,  the  transaction  will  be  so  deter- 
mined. Thus,  in  one  case,3  A.  deposited  wheat  with  B.,  receiving 
a  memorandum  as  follows :  "  Bought  of  A.  for  B.,  to  be  delivered 
at  his  elevator,  according  to  sample,  wheat  No.  3,  at  owner's  risk 
as  to  fire,"  and  the  wheat  was  placed  in  a  bin  by  itself,  where 
it  remained  until  it  was  destroyed  by  accidental  fire.  No  de- 
mand was  made  for  the  wheat  until  after  the  fire,  but  a  few 

iSchenck  v.   Saunders    (1859),   13  sell,  Browne  was  to  pay  the  highest 

Gray  (Mass.),  37.  price  for  the  grain  or  return  a  like 

2  Mansfield  v.  Converse  (1864),  8  quantity  and  quality.  The  transac- 
Allen  (Mass.),  182,  See  also  Brown  v.  tion  was  held  to  be  a  sale,  and  not 
Hitchcock,  28  Vt.  452;  Bulkley  v.  a  mere  storage  or  bailment  of  the 
Andrews,  39  Conn.  70.  grain. 

3  Irons  v.  Kentner  (1879),  51  Iowa,  In  Nelson  v.  Brown,  44  Iowa,  455, 
88,  33  Am.  R.  119,  50  N.  W.  R.  73.  the  ticket,  or  memorandum,  deliv- 

In  Johnston  v.  Browne,  37  Iowa,  ered  to  the  depositor  read:  "Received 
200,  the  ticket,  or  memorandum,  of  C.  C.  Cowell,  for  Thompson,  in 
given  by  Browne  on  receiving  the  store,  for  account  and  risk  of  C.  C. 
grain  in  the  elevator  was  in  these  Cowell.  one  hundred  and  eighty- 
words:  "  Bought  of  H.  F.  Bickett,  for  three  bushels  No.  3  wheat.  Loss  by 
"W.  P.  Browne,  to  be  delivered  at  fire,  heating  and  the  elements  at  the 
Browne's  elevator,  if  all  like  sample,  owner's  risk.     Wheat  of  equal  test 

of  wheat,  at  % ,  in  store, and  value,   but    not  the    identical 

buyer,  bushels,  lbs."      It  wheat,  may  be  returned."     It  was 

was  shown  in  that  case,  by  extrinsic  held  in  that  case  that  so  long  as  the 

evidence,  that  the  understanding  of  wheat    remained    in    the    elevator, 

the  parties  was   that   Browne,  the  though  thrown  in  a  common   bin 

proprietor  of  the  elevator,  was  to  ship  with  wheat  of  like  quality,  the  trans- 

and  sell  the  grain  on  his  own  account,  action  was  a  mere  bailment." 
and,  when  the  depositor  desired  to 

24 


CH.  II.]  TEANS ACTIONS    DISTINGUISHED    FROM    SALES.  [§  25. 

days  before  the  fire  B.  offered  A.  a  certain  price  for  it,  which 
was  refused.  It  appeared  that  it  was  the  custom  at  the  place 
in  question  for  the  warehouseman  to  mix  all  wheat  of  the  same 
grade  in  one  common  bin,  to  keep  a  sample,  and  then  to  ship 
the  mass  away  for  sale;  and,  when  the  parties  depositing  the 
wheat  got  ready  to  sell  it,  to  buy  it  of  them,  if  possible,  and  if 
not,  then  to  return  wheat  of  the  same  grade  and  quality  as 
that  deposited.  When  left  on  storage  for  more  than  a  month, 
a  storage  fee  was  charged. 

Said  the  court.  "It  was  admitted  the  grain  was  delivered 
in  pursuance  of  the  alleged  custom  or  usage,  and  it  was  shown 
that  it  was  in  the  elevator  in  a  separate  bin  when  it  was 
burned,  and  that  the  defendant  offered  to  purchase  it  on  the 
Saturday  before  the  fire.  These  facts,  when  taken  in  connec- 
tion with  the  ticket,  show  clearly  that  the  transaction  was  not 
a  sale,  but  a  bailment.  It  is  true  that  the  word  '  bought '  in 
the  ticket,  unexplained,  would  import  a  sale,  but  when  taken 
in  connection  with  the  expression  'at  owner's  risk  of  fire,'  and 
in  the  light  of  the  parol  evidence,  it  clearly  appears  that  a  sale 
was  not  contemplated  by  the  parties.  '  At  owner's  risk  of 
fire '  evidently  means  that  so  long  as  the  wheat  should  remain 
in  the  elevator  the  plaintiff  should  bear  that  risk.  If  it  was 
a  sale,  it  is  not  at  all  probable  that  any  such  words  would  have 
been  used.  In  such  case  the  warehouseman  would  have  as- 
sumed the  risk  without  any  stipulation  to  that  effect." 

§25.  Same  subject  —  Commingling  of  goods  —  Effect  of 

custom. —  Though  a  bailment  thus  ordinarily  contemplates  the 
return  of  the  identical  article  in  its  original  or  changed  form, 
still  the  agreement  of  the  parties,  as  evidenced  by  express 
words  or  by  their  acquiescence  in  an  established  custom,  may 
permit  the  substitution  of  another  article  of  like  kind  whose 
return  will  satisfy  the  contract  of  bailment.  This  is  illustrated 
in  the  common  case  of  the  deposit  of  grain  in  a  bin  or  eleva- 
tor with  other  grain  of  like  kind,  from  the  mass  of  which  the 
bailor's  grain  is  to  be  returned  to  him,  but  which  mass  is  at  all 
times  to  be  kept  good  to  provide  for  such  return.     Thus  in  a 

25 


§25.] 


LAW    OF    SALE. 


[BOOK   I. 


late  case  in  Indiana,1  Nixon  was  a  warehouseman,  and  it  was 
his  custom  to  receive  wheat  on  deposit  and  to  place  it  in  a  com- 
mon bin  with  wheat  bought  by  him,  and  it  was  also  his  custom 
to  sell  wheat  from  this  bin.  Not  knowing  of  this  latter  custom, 
Rice  deposited  wheat  with  Nixon,  and  it  was  put  into  this  bin 
with  other  wheat  deposited  by  other  persons  or  bought  by 
Nixon,  and  from  this  mingled  wheat  Nixon  sold  from  time  to 
time,  but  there  was  always  wheat  enough  in  the  bin  to  supply 
all  depositors,  until  by  accidental  fire  the  warehouse  and  the 
wheat  were  destroyed.  No  demand  was  made  for  the  wheat 
until  after  the  fire,  and  there  was  no  agreement  that  Rice  should 
have  the  option  to  demand  the  grain  or  its  value  in  money,  nor 
had  Nixon  any  option  to  return  the  value  in  money  instead  of 
the  wheat.     This  was  held  to  be  a  bailment  and  not  a  sale. 

Said  the  court:  "The  rule  which  we  accept  as  the  true  one 
is  required  by  the  commercial  interests  of  the  country,  and  is 
in  harmony  with  the  cardinal  principle  that  the  intention  of 


iRice  v.  Nixon,  (1884),  97  Ind.  97,    R.  444.  21  Am.  St.  R.  225,  it  is  said: 


49  Am.  R.  430.  [The  court  cited  Lup- 
ton  v.  White,  15  Vesey  Jr.  432;  2 
Kent  Com.  (12th  ed.)  365,  590;  Story, 
Bailm.,  §  40;  Law  of  Prod.  Ex.,  §  152; 
2  Schouler,  Pers.  Prop.,  §46;  6  Am. 
L.  Rev.  457;  2  Bl.  Com.  (Cooley's  Ed.) 
404,  n.;  Ledyard  v.  Hibbard,  48  Mich. 
421,  12  N.  W.  R.  637,  42  Am.  R.  474; 
Nelson  v.  Brown,  44  Iowa,  455;  Sex- 
ton v.  Graham,  53  Iowa,  181;  Nelson 
v.  Brown,  53  Iowa,  555;  Irons  v. 
Kentner,  51  Iowa,  88,  33  Am.  R.  119, 

50  N.  W.  R.  73.  Pribble  v.  Kent,  10 
Ind.  325,  71  Am.  Dec.  327;  Ewing  v. 
French,  1  Blackf.  (Ind.)  353;  Carlisle 
v.  Wallace,  12  Ind.  252,  74  Am.  Dec. 
207.  and  Ashby  v.  West,  3  Ind.  170, 
were  distinguished  or  reconciled.] 
To  the  same  effect  as  the  principal 
case  are  Bottenberg  v.  Nixon,  97  Ind. 
106;  McGrew  v.  Thayer,  24  Ind.  App. 
578.  57  N.  E.  R.  262.  '  In  Woodward  v. 
Seinans  (1890),  125  Ind.  330,  25  N.  E. 


"It  is  the  law  of  this  jurisdiction,  as 
well  as  of  many  others,  that  where  a 
warehouseman'  receives  grain  on  de- 
posit for  the  owner,  to  be  mingled 
with  other  grain  in  a  common  re- 
ceptacle, from  which  sales  are  made, 
the  warehouseman  keeping  con- 
stantly on  hand  grain  of  like  kind 
and  quality  for  the  depositor,  and 
ready  for  delivery  to  him  on  call,  the 
contract  is  one  of  bailment  and  not 
of  sale,"  citing  Rice  v.  Nixon,  supra; 
Bottenberg  v.  Nixon,  supra;  Schind- 
ler  v.  Westover,  99  Ind.  395;  Lyon  v. 
Lenon,  106  Ind.  567,  7  N.  E.  R.  311; 
Preston  v.  Withers poon,  109  Ind.  457, 
9  N.  E.  R.  585,  58  Am.  R.  417;  Morn- 
ingstar  v.  Cunningham,  110  Ind.  328, 
59  Am.  R.  211,  11  N.  E.  R.  593.  See 
also  Baker  v.  Born,  17  Ind.  App.  422, 
46  N.  E.  R.  930;  McGrew  v.  Thayer, 
24  Ind.  App.  578,  57  N.  E.  R.  262. 


20 


CH.  II.]  TRANSACTIONS   DISTINGUISHED    FEOM    SALES.  [§  25. 

contracting  parties  is  always  to  be  given  effect.  It  is  not  un- 
known to  us,  nor  can  it  be  unknown  to  any  court,  for  it  is  a  mat- 
ter of  great  public  notoriety  and  concern,  that  a  vast  part  of  the 
grain  business  of  the  country  is  conducted  through  the  medium 
of  elevators  and  warehouses,  and  it  cannot  be  presumed  that 
warehousemen  in  receiving  grain  for  storage,  or  depositors  in 
intrusting  it  to  them  for  that  purpose,  intended  or  expected 
that  each  lot,  whether  of  many  thousand  bushels  or  of  a  few 
hundred,  should  be  placed  in  separate  receptacles;  on  the  con- 
trary, the  course  of  business  in  this  great  branch  of  commerce, 
made  known  to  us  as  a  matter  of  public  knowledge  and  by  the 
decisions  of  the  courts  of  the  land,  leads  to  the  presumption 
that  both  the  warehouseman  and  the  depositor  intended  that 
the  grain  should  be  placed  in  a  common  receptacle  and  treated 
as  common  property.  This  rule  secures  to  the  depositor  all 
that  in  justice  he  can  ask,  namely,  that  his  grain  shall  be  ready 
for  him  in  kind  and  quantity  whenever  he  demands  it.  Any 
other  rule  would  impede  the  free  course  of  commerce  and  ren- 
der it  practically  impossible  to  handle  our  immense  crops.  It 
is  reasonable  to  presume  that  the  warehouseman  and  his  de- 
positor did  not  intend  that  the  course  of  business  should-  be 
interrupted,  and  that  they  did  not  intend  that  the  almost  im- 
possible thing  of  keeping  each  lot,  small  or  great,  apart  from 
the  common  mass  should  be  done  by  the  warehouseman.  If 
the  warehouseman  is  not  bound  to  place  grain  in  a  separate 
place  for  each  depositor,  then  the  fact  that  he  puts  it  in  a  com- 
mon receptacle  with  grain  of  his  own  and  that  of  other  depos- 
1tors  does  not  make  him  a  purchaser,  and  if  he  is  not  a  pur- 
chaser then  he  is  a  bailee.  In  all  matters  of  contract  the 
intention  of  the  parties  gives  character  and  effect  to  the  trans- 
action, and  in  such  a  case  as  this  the  circumstances  declare 
that  the  intention  was  to  make  a  contract  of  bailment  and  not 
a  contract  of  sale.  The  duties,  rights  and  liabilities  of  ware- 
housemen are  prescribed  by  the  law  as  declared  by  the  courts 
and  the  legislature,  and  as  matter  of  law  it  is  known  to  us  that 
a  warehouseman,  by  placing  grain  received  from  a  depositor 
in  a  common  receptacle,  and  treating  it  as  the  usages  of  trade 

27 


§  26.]  LAW  V0F    SALE.  [BOOK    I. 

warrant,  does  not  become  the  buyer  of  the  grain,  unless,  indeed, 
there  is  some  stipulation  in  the  contract  imposing  that  charac- 
ter upon  him." 

§  26.  .  In  another  case,1  where  wheat  of  different  depos- 
itors had  been  commingled  with  the  bailee's  own,  but  the  latter 
had  no  right  to  draw  from  the  common  stock  more  than  his 
own  share,  the  court  said:  "If  a  party  having  charge  of  the 
property  of  others  so  confounds  it  with  his  own  that  the  line 
of  distinction  cannot  be  traced,  all  the  inconvenience  of  the 
confusion  is  thrown  upon  the  party  who  produces  it;  where, 
however,  the  owners  consent  to  have  their  wheat  mixed  in  a 
common  mass,  each  remains  the  owner  of  his  share  in  the  com- 
mon stock.  If  the  wheat  is  delivered  in  pursuance  of  a  con- 
tract for  bailment,  the  mere  fact  that  it  is  mixed  with  a  mass 
of  like  quality,  with  the  knowledge  of  the  depositor  or  bailor, 
does  not  convert  that  into  a  sale  which  was  originally  a  bail- 
ment, and  the  bailee  of  the  whole  can,  of  course,  have  no  greater 
control  of  the  mass  than  if  the  share  of  each  were  kept  sepa- 
rate. If  the  commingled  mass  has  been  delivered  on  simple 
storage,  each  is  entitled  on  demand  to  receive  his  share ;  if  for 
conversion  into  flour,  to  his  proper  proportion  of  the  product.2 
It  makes  no  difference  that  the  bailee  had,  in  like  manner,  con- 
tributed to  the  mass  of  his  own  wheat;  for  although  the  abso- 
lute owner  of  his  own  share,  he  still  stands  as  bailee  to  the 
others,  and  he  cannot  abstract  more  than  that  share  from  the 
common  stock  without  a  breach  of  the  bailment."  The  effect 
of  such  a  commingling  with  no  right  of  sale  in  the  bailee  is  to 
make  all  the  depositors  tenants  in  common  of  the  mass,  the 
interest  of  each  being  measured  by  the  amount  called  for  by 
his  receipt.  If  the  warehouseman  also  contributes  of  his  own 
grain  to  the  mass,  he  becomes  a  tenant  in  common  with  the 
others.3 

1  Bretz  v.  Diehl  (1888),  117  Pa.  St.  3  Hall  v.  Pillsbury  (1890),  43  Minn. 
589,  2  Am.  St.  R.  706,  11  Atl.  R.  893.  33,  44  N.  W.  R.  673,  19  Am.  St.  R.  209; 

2  Citing  Chase  v.  Washburn,  1  Ohio  O'Uell  v.  Leyda  (1889),  46  Ohio  St.  244, 
St.  244,  59  Am.  Dec.  623;  Hutchison  20  N.  E.  R.  472;  Sexton  v.  Graham 
v.  Commonwealth,  82  Pa.  St.  472.  (1880),  53  Iowa,  181,  4  N.  W.  R.  1090. 

28 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM    SALES.       [§§   27,  28. 

§  27.  .  Commingling  with  right  of  sale  or  use  in  bailee. 

In  the  cases  of  commingling  thus  far  noticed  there  was  no 
right  on  the  part  of  the  bailee,  without  keeping  on  hand  a 
stock  sufficient  to  satisfy  the  bailor's  demand,  to  sell  or  other- 
wise dispose  of  the  mass  and  render  to  the  bailor,  instead  of 
his  original  deposit,  either  other  property  or  money.  "Where 
this  right  exists  a  new  element  is  introduced.  This  new  ele- 
ment may  be  introduced  at  different  stages  in  the  transaction. 
Thus  — 

§  28.  .  T.  The  grain  may  have  been  originally  deposited 

in  a  common  mass  upon  which  the  bailor's  claim  was  to  attach, 
and  from  which  he  would  be  entitled  at  any  time  to  demand 
and  receive  his  proper  share,  subject,  however,  to  an  express  or 
implied  term  that  the  bailee  might  draw  from  the  common 
stock,  and,  if  he  consumed  the  whole  so  that  the  bailor's  por- 
tion could  not  be  returned,  that  he  should  thereupon  be  deemed 
a  purchaser.  There  would  here  be  a  contract  of  bailment 
wdiich  might  ripen  into  a  sale  upon  a  contingency.  In  one 
case  *  of  this  nature  it  is  said  that  "  though  the  quantity  in 
store  might  fluctuate  from  day  to  day  as  grain  would  be  re- 
ceived and  delivered  out,  this  would  not  affect  the  title  of  the 
holder  of  receipts,  who  would  be  at  liberty  to  demand  and  re- 

xLeclyard    v.    Hibbard    (1882),    48  to  be  a  bailment  and  not  a  sale. 

Mich.  421.  12  N.  W.  R.  637,  42  Am.  R.  Speaking  of  the  receipt  above  re- 

474.     To  like  effect,   see   Nelson   v.  ferred  to,  the  court  said:    "All  it 

Brown  (1876),  44  Iowa,  455.     See  also  amounted  to,  in  our  judgment,  was 

Smith  v.  Smith  (1892),  91  Mich.  7,  51  an  option  on  the  part  of  the  defend- 

N.  W.  R.  694  ant,  when  the  receipt  was  presented, 

In  State  v.  Rieger  (1894),  59  Minn,  to  pay  the  market  price  of  the  grain 

151,  60  N.  W.  R  1087,  wheat  was  de-  instead   of  returning  the   grain   in 

posited  and  a  receipt  given  stating:  specie;  and  this  option  he  could  only 

"  The  conditions  on  which  this  wheat  exercise  when  the  receipt  was  pre- 

is  received  at  this  elevator  are  that  sented,  and  by  paying  the   money. 

Rieger  [the  warehouseman]  has  this  It  never  contemplated  that  he  might 

option:  either  to  deliver  the  grade  treat  the  wheat  as  his  own  without 

of  wheat  that  this  ticket  calls  for,  first  paying  for  it.     If  he  elected  to 

or  to  pay  the  bearer  the  market  price  buy,  it  was  to  be  a  purchase  for  cash 

for  the  same,  less  elevator  charges,  and  not  on  credit." 
on  surrender  of  this  ticket."    Held 

29 


§  29.]  LAW   OF    SALE.  [BOOK   I. 

ceive  his  proper  quantity  at  any  time  if  so  much  remained  in 
store.  But  if  the  quantity  in  store  is  reduced  by  consumption 
instead  of  by  shipment  or  sale,  it  is  not  apparent  that  the  rights 
of  the  holder  of  the  receipts  would  be  any  different.  It  is  true, 
if  the  wheat  is  all  consumed  and  the  amount  in  store  is  not 
kept  good  so  that  a  demand  for  wheat  can  be  responded  to, 
and  if  the  consumption  is  by  consent  of  the  owner,  express  or 
implied,  the  consumption  under  such  circumstances  may  be 
justly  regarded  as  a  meeting  of  the  minds  of  the  parties  upon 
a  sale ;  but  so  long  as  grain  is  kept  in  store  from  which  the  re- 
ceipts may  be  met,  the  fair  presumption  is  that  it  is  intended 
they  shall  be  so  met,  and  the  presumption  would  only  be  over- 
come by  some  act  unequivocal  in  its  nature."  In  cases  of  this 
class  the  transaction  continues  a  bailment  so  long  as  the  depos- 
itor has  the  right  to  demand  the  return  of  his  share  of  the 
grain  and  the  mass  remains  to  supply  the  demands  of  the  de- 
positors; and  it  only  becomes  a  sale  when  subsequently,  but 
in  accordance  with  an  express  or  implied  agreement,  the  bailee 
is  permitted  to  become  a  purchaser  and  to  dispose  of  the  whole 
mass.  The  mere  fact  of  such  disposition,  however,  is  not  the 
criterion,  but  it  is  the  express  or  implied  agreement  that  such 
a  disposition  may  be  made.  Without  such  agreement  the  dis- 
posing of  the  whole  would  amount  to  a  conversion,  but  not  a 
sale ;  but  with  it,  it  is  not  a  conversion,  but  is  a  sale. 

§  29.  .  II.  In  other  cases,  the  right  of  immediate  dis- 
posal or  consumption  may  be  granted  to  the  warehouseman  at 
the  moment  of  the  delivery,  the  depositor  retaining  no  right  to 
demand  the  return  of  his  share  of  the  mass,  unless  the  ware- 
houseman elects  to  so  return  it,  the  latter  having  the  option 
whether  to  return  the  original  or  like  grain  or  to  pay  the  value 
in  money.  In  such  cases  the  transaction  is  held  to  constitute 
a  sale.1     In  one  case  the  distinction  is  thus  stated:  "If  the 

iLyon  v.  Lenon,  106  Ind.  5G7,  7  N.  Ind.  122,  25  N.  E.  R.  812;  Cloke  v. 
E.  R.  311;  Barnes  v.  McCrea  (1888),  Shafroth,  137  111.  393,  27  N.  E.  R.  702; 
75  Iowa,  267,  39  N.  W.  R.  392,  9  Am.  Reherd  v.  Clem  (1889),  86  Va.  374, 
St.  R.  473;  Johnston  v.  Browne,  37  10  S.  E.  R.  504;  Fishback  v.  Van 
Iowa,  200;  Woodward  v.  Boone,  126    Dusen,  33  Minn.  Ill,  22  N.  W.  R.  244. 

30 


CH.  I  I.J  TRANSACTIONS   DISTINGUISHED   FEOM    SALES. 


[§30. 


dealer  has  the  right,  at  his  pleasure,  either  to  ship  and  sell  the 
same  on  his  own  account,  and  pay  the  market  price  on  demand, 
or  retain  and  redeliver  the  wheat,  or  other  wheat  in  the  place 
of  it,  the  transaction  is  a  sale.  It  is  only  where  the  bailor  re- 
tains the  right  from  the  beginning  to  elect  whether  he  will 
demand  the  redelivery  of  his  property,  or  other  of  like  quality 
and  grade,  that  the  contract  will  be  considered  one  of  bail- 
ment. If  he  surrender  to  the  other  the  right  of  election,  it 
will  be  considered  a  sale,  with  an  option  on  the  part  of  the 
purchaser  to  pay  either  in  money  or  property  as  stipulated. 
The  distinction  is:  Can  the  depositor, by  his  contract,  compel 
a  delivery  of  wheat,  whether  the  dealer  is  willing  or  not  ?  If 
he  can,  the  transaction  is  a  bailment.  If  the  dealer  has  the 
option  to  pay  for  it  in  money  or  other  wheat,  it  is  a  sale."  * 

§  30.  .  III.  Other  cases  present  the  features  of  sale  in  a 

more  marked  aspect.  Thus  in  one  case2  it  appeared  that  the 
owner  of  wheat  deposited  it  with  a  miller  to  be  paid  for  on 


See  also  Coquard  v.  Wernse,  100  Mo. 
137,  13  S.  W.  R.  341. 

1  Lyon  v.  Lenon,  supra;  enforcing 
same  distinction,  James  v.  Plank,  48 
Ohio  St.  255,  26  N.  E.  R.  1107. 

2  Jones  v.  Kemp  (1882),  49  Mich.  9, 
12  X.  W.  R.  890.  To  like  effect,  where 
wheat  was  deposited  to  be  paid  for  at 
whatever  might  be  the  price  in 
twenty  days  (Woodward  v.  Boone 
(1890),  126  Ind.  122,  25  N.  E.  R.  812); 
and  where  wheat  was  deposited  and 
tickets  given  which  might  be  pre- 
sented at  any  time,  and  which  en- 
titled the  holder  to  the  market  price 
on  the  day  of  presentation.  Weiland 
v.  Sunwall  (1895),  63  Minn.  320,  65  N. 
W.  R.  628;  Weiland  v.  Krejnick 
(1895),  63  Minn.  314,  05  N.  W.  R.  631. 
But  where  the  manager  of  an  ele- 
vator, when  wheat  was  brought  to 
it,  asked  the  owner  if  he  wished  to 
sell,  and  if  he  did,  paid  cash,  but  if 
he  did  not,  gave  a  deposit  ticket,  it 


was  held  presumptively  a  bailment 
and  not  a  sale.  Weiland  v.  Krejnick, 
supra. 

In  Rumpf  v.  Barto  (1894),  10  Wash. 
382,  38  Pac.  R.  1129,  goods  were  de- 
livered to  a  person  under  an  agree- 
ment evidenced  by  a  memorandum 
as  follows:  "These  goods  are  sent 
for  your  inspection,  the  property  of 
Rumpf  &  Mayer,  and  to  be  returned 
to  them  within  demand  days.  Sale 
only  takes  effect  from  date  of  their 
approval  of  your  selection,  and  until 
then  goods  are  to  be  held  subject  to 
their  order."  The  transaction  consti- 
tutes a  bailment  and  not  a  condi- 
tional sale. 

Where  a  person  receives  goods 
under  an  agreement  by  which  he 
is  to  keep  them  during  a  certain 
period,  and  if  within  that  time  he 
pays  for  them  he  is  to  become  the 
owner,  but  otherwise  is  to  pay  for 
the  use  of  them,  he  receives  them  as 


31 


§31.] 


LAW    OF    SALE. 


[book 


delivery  or  at  any  subsequent  time  when  the  depositor  de- 
manded it,  at  the  price  current  at  the  time  of  demand.  It  was 
also  understood  that  the  miller  might  —  as  he  did  —  mix  it 
with  his  own  grain  and  grind  from  the  mass  as  he  desired. 
The  depositor  subsequently  demanded  payment,  but  before  pay- 
ment was  made  the  miller  failed.  The  court  below  held  that 
this  was  a  mere  bailment,  but  the  supreme  court  said :  "We 
think  this  was  erroneous.  The  plaintiff  reserved  no  right  to 
recall  his  wheat  or  any  wheat  or  flour  in  its  place.  Defendant 
reserved  no  right  to  return  it  actually  or  in  kind.  He  was 
bound  at  all  events  to  keep  it,  and  to  pay  for  it  on  demand, 
while  the  money  was  payable  without  any  contingency.  This 
was  a  sale  and  delivery  at  once  and  without  any  credit  on 
which  defendant  could  rely.  He  was  bound  to  have  his  money 
always  ready,  and  to  pay  when  called  on." 

§  31.  Bailment  with  privilege  of  purchase  to  he  distin- 
guished from  sale.  —  In  dealing  with  the  questions  arising 
out  of  grain,  some  illustrations  have  already  been  given  of 


a  bailee,  and  the  property  in  the 
goods  is  not  changed  until  the  price 
is  paid.  Brown  Bros.  v.  Billington 
(1894),  163  Pa.  St.  76,  29  Atl.  R. 
904. 

In  McClelland  v.  Scroggin  (1892),  35 
Neb.  536,  53  N.  W.  R,  469,  it  appeared 
that  by  a  written  agreement  S.  leased 
to  M.  six  hundred  and  forty  acres  of 
land  and  a  large  amount  of  personal 
property  thereon,  consisting  of  live- 
stock and  farming  implements,  of 
the  agreed  value  of  $23,331.  It  was 
provided  in  said  agreement:  ''That 
when  said  M.  shall  pay  to  said  S.  the 
sum  of  $23,331,  with  interest  thereon 
at  the  rate  of  ten  per  cent,  per  an- 
num, together  with  the  rents  above 
specified,  and  all  sums  which  S.  may 
advance  to  or  for  said  M.,  with  inter- 
est thereon,  then  all  the  above  prop- 
erty shall  be  conveyed  to  him,  the 


said  M.,  together  with  all  increase 
thereof.  Until  such  payment  such 
property  shall  be  and  remain  the 
property  of  S..  together  with  the  in- 
crease thereof,  and  should  any  of 
said  property  be  sold  bj?-  consent  of 
S.,  the  proceeds  thereof  shall  be  ap- 
plied upon  the  above  indebtedness." 
Held,  not  a  conditional  sale,  but  an 
agi-eement  to  sell  at  the  election  of 
M.,  and  that  the  relation  of  the  par- 
ties with  respect  to  said  property  is 
that  of  bailor  and  bailee  only. 

But  in  Barnes  v.  Morse  (1890),  38 
I1L  App.  274,  where  the  contract  was 
otherwise  clearhr  a  contract  of  sale, 
it  was  held  that  a  clause  in  the  con- 
tract that  "goods  not  sold  this  year 
will  be  carried  on  next  year's  time  " 
did  not  make  the  contract  one  of 
bailment  rather  than  sala 


CH. 


II.] 


TRANSACTIONS   DISTINGUISHED   FEOil   SALES. 


[§3i 


bailments  to  which  is  annexed  the  privilege  of  buying  the 
property  at  some  time  in  the  future.  But  other  cases  also 
present  this  feature  in  almost  countless  forms.  The  various 
contracts,  sometimes  called  "  leases  with  a  right  of  purchase," 
but  more  frequently  classed  under  the  general  term  "con- 
ditional sales,"  are  illustrations  of  such  transactions,  to  which 
more  detailed  consideration  will  be  hereafter  given.1  But  for 
the  present  purpose  — 

§  32.  Option  to  buy  and  pay  for  chattel,  or  pay  for 

its  use.  —  "  Where,  by  the  contract,"  it  is  said  in  one  case,2  "  the 
vendee  receives  a  chattel  which  he  is  to  keep  for  a  certain 
period,  and  if  in  that  time  he  pays  for  it  the  stipulated  price, 
he  is  to  become  the  owner,  but,  if  he  does  not  pay  the  price, 
he  is  to  pay  for  its  use,  the  vendee  receives  it  as  bailee,  and  the 
right  of  property  is  not  changed  until  the  price  is  paid."  In 
a  later  case 3  in  the  same  state  the  court  says  that  it  is  a  bail- 


1  See  post,  Book  II,  ch.  IIL 
2Eose  v.  Story  (1845),  1  Pa.  St.  (1 
Barr),  190,  quoted  in  Enlow  v.  Klein 
(1875),  79  Pa.  St.  488,  where  are 
cited  Clark  v.  Jack,  7  Watts  (Pa.), 
375;  McCul  lough  v.  Porter,  4  W.  & 
S.  177,  39  Am.  Dec.  68;  Lehigh  Co.  v. 
Field,  8  W.  &  S.  232;  Rowe  v.  Sharpe, 
51  Pa.  St.  26:  Becker  v.  Smith,  59 
Pa.  St.  469;  Henry  v.  Patterson,  57 
Pa.  St  346.  In  Enlow  v.  Klein  the 
facts  were  that  Enlow  agreed  with 
Moritz  to  furnish  him  with  a  team 
of  horses,  wagons,  etc..  for  country 
peddling;  he  to  pay  Enlow  $5  per 
week,  in  two  hundred  payments;  the 
team,  etc.,  "to  belong  to  and  be 
managed  by  Enlow  until  the  last  of 
the  two  hundred  payments;  "  Moritz 
to  keep  up  all  repairs,  and  if  a  horse 
should  die  to  replace  him  at  his  own 
expense;  Enlow  "to  relinquish  all 
his  right,  etc.,  to  Moritz  when  the 
last  payment  is  made  of  the  two 
hundred."  Held  to  be  a  bailment 
3 


See  also  Mt  Leonard  Milling  Co.  v. 
Insurance  Co  (1887),  25  Mo.  App.  259. 

3  Chamberlain  v.  Smith  (1863),  44 
Pa.  St  431.  In  this  case  A.  received 
from  B.  a  yoke  of  oxen  "  to  keep  and 
work  in  a  reasonable,  farmer-like 
manner  for  the  term  of  one  year; 
said  cattle  to  be  returned  in  one 
year."  At  the  same  time  A.  deliv- 
ered to  B.  another  animal  for  the  use 
of  the  cattle.  The  contract  also  pro- 
vided that  A  "  has  the  privilege,  by 
paying  .$40  and  legal  interest  at  the 
expiration  of  the  year,  to  keep  the 
said  cattle." 

In  Middleton  v.  Stone  (1886),  111 
Pa.  St.  589,  4  Atl.  R.  523,  A.  deliv- 
ered to  B.  two  colts  under  a  contract 
that  B.  should  safely  keep  and  sell 
them,  if  possible,  for  A.  at  a  fixed 
price  before  a  certain  date,  and,  if 
not  sold,  to  return  them  in  good  con- 
dition to  A.  This  was  held  a  bail- 
ment and  not  a  sale,  though  B.  had 
also  the  right  under  the  contract  to 


§  32.]  LAW    OF    SALE.  [BOOK   I. 

ment  and  not  a  sale ;  a  bailment  with  a  refusal  of  the  chattel 
for  a  specified  time. 

At  the  same  time,  it  is  easy  here,  as  it  has  been  found  to 
be  in  other  cases,  to  attempt  to  disguise  what  is  really  a  sale 
under  the  cloak  of  a  mere  bailment.  Thus  where,  by  the 
terms  of  a  written  contract,  Mary  Hicks  "  leased "  to  John 
Summerson  a  pair  of  horses  "for  the  sum  of  one  hundred 
and  twenty-five  dollars,  to  be  paid  by  the  first  of  April,  18S6; 
and  in  case  the  said  John  Summerson  shall  fail  to  make 
said  payment  as  above  agreed,"  then  the  said  Mary  Hicks  to 
have  "  full  and  free  possession  of  said  team,"  it  being  "  further 
agreed  that  the  ownership  shall  remain  in  hands  of  Mary 
Hicks  until  payment  is  made  in  full,"  it  was  held  that  there 
was  a  sale  and  not  a  bailment  or  leasing.  Said  the  court: 
"  We  are  unable  to  agree  entirely  with  the  view  taken  by 
Veither  of  the  parties.  Both  appear  to  have  been  in  some  de- 
gree misled  by  looking  at  the  name  and  not  at  the  substance 
of  the  contract.  It  is  called  a  lease,  but  is  manifestly  a  sale. 
No  term  is  stipulated  for  the  hiring,  nor  any  rate  per  month 
or  per  annum.  On  the  contrary,  it  is  merely  said  that  the 
horses  are  leased  for  a  lump  sum  of  one  hundred  and  twenty- 
five  dollars.  But  what  is  conclusive  of  the  character  of  the 
transaction  is  the  stipulation  that  '  the  ownership  shall  remain 
in  Mary  Hicks  until  payment  is  made  in  full.'    If  it  was  merely 

keep  the  colts  himself  upon  paying  a  ment  that  he  should  be  paid  for  her 
price  fixed  for  them.  Under  the  cir-  keeping  by  the  milk  she  would  yield; 
cumstances  of  the  case  the  latter  and  if,  at  any  time  within  four 
clause  was  held  immaterial,  though  months,  he  should  pay  the  plaintiff 
the  court  said,  "  But  even  as  to  that,  $35,  the  title  to  the  cow  should  vest 
the  question  at  issue  being  between  in  him.  B.  did  not  pay  for  the  cow, 
the  original  parties  only,  no  credit-  but  sold  and  delivered  her  to  the  de- 
ors  being  interested,  the  title  could  fendant,  who  bought  her  in  good 
not  pass  without  the  actual  payment  faith,  supposing  her  to  be  the  prop- 
of  the  money,  and  hence  this  part  of  erty  of  B.  In  an  action  of  trover 
the  contract  cannot  convert  the  against  such  purchaser  it  was  held 
whole  into  a  sale."  that  the  plaintiff  was  entitled  to  re- 
in Hart  v.  Carpenter  (1856),  24  cover.  See  also  Nichols  v.  Ashton 
Conn.  426,  B.  took  the  plaintiffs  cow  (1892),  155  Mass.  205,  29  N.  E.  R.  519. 
into  his  possession  under  an  agree  , 

34 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM    SALES.       [§§  33-35. 

a  hiring,  the  ownership  would  have  remained  in  Mrs.  Hicks 
all  the  time  without  any  such  stipulation." 1 

§  33.  Delivery  of  goods  on  trial  to  be  purchased  if  approved 
is  not  a  present  sale. —  So  the  delivery  of  goods  on  trial  to  be 
bought  and  paid  for,  if  the  prospective  purchaser  approves  of 
them,  and,  if  not,  to  be  returned,  does  not  constitute  a  present 
sale,  and  the  title  does  not  pass  until  approval  express  or  im- 
plied.2 "Within  what  time  this  option  is  to  be  exercised,  what 
is  the  effect  of  a  failure  to  disapprove  within  the  time  agreed 
upon,  and  what,  if  any,  notice  of  disapproval  may  be  required, 
are  questions  which  will  be  considered  in  later  sections.3 

§  34.  Sale  with  option  to  return  or  pay. —  To  be  distin- 
guished from  the  cases  referred  to  in  the  preceding  section  are 
those  in  which  the  option  is  precisely  the  reverse,  that  is,  that 
the  article  is  purchased  and  shall  be  paid  for,  unless  it  is  re- 
turned. An  option  to  purchase  if  one  likes  is  radically  dif- 
ferent from  an  option  to  return  a  purchase  if  he  does  not  like. 
In  the  former  case  the  title  does  not  pass  until  the  option  is 
exercised ;  in  the  latter  case  it  passes  at  once,  subject  to  the 
right  to  rescind  and  return  under  the  conditions  agreed  upon.4 

"Within  what  time  this  option  is  to  be  exercised,  and  what  is 
the  effect  of  a  failure  to  exercise  it  as  agreed,  are  subjects 
which  are  reserved  for  fuller  treatment  in  another  place.5 

§  35.  Bailment  or  sale,  how  determined  —  Law  or  fact. — 

The  question  of  bailment  or  sale,  like  that  hereafter  to  be  con- 

1  Summerson  v.  Hicks  (1890),  134  stipulating   for  the    return    of  the 

Pa.  St.  566, 19  Atl.  R.  808.     So  in  Na-  plow,  or  the  payment  of  any  rent, 

tional  Car  &  L.  Builder  v.  Cyclone  was  really  a  sale. 

Steam  Snow  Plow  Co.  (1892),  49  Minn.  -'  See  post,    §$  675-685,   Book    II, 

105.  51  X.  W.  R.  657,  where  there  had  chapter  III,  where  many  other  forms 

been  a  contract  by  defendant  to  pay  of  sale  upon  condition  are  consid- 

to  plaintiff  a  sum  of  money  when  a  ered. 

certain    snow-plow    was     sold,    the  3  See  post,  %%  681-685. 

court  held  that  a  "  lease  "  of  the  plow  '  4  See   post,   g§   657-662,    Book    II, 

for  ninety-nine  years,  with  the  right  chapter  III,  where  this  and  kindred 

in  the  lessee  to  use,  alter,  rearrange  subjects  are  more  fully  discussed. 

or  improve  the  machine  according  5  See  post,  §§  659-662. 
to  its  own  judgment,  and  without 

35 


§§  36-38.]  LAW    OF    SALE.  [BOOK    I. 

sidered  of  sale  or  consignment,  may  be  one  to  be  decided  by 
the  court  or  the  jury  as  the  circumstances  of  each  case  may 
determine.  "Where  the  whole  transaction  is  represented  in  a 
written  contract  before  the  court,  its  legal  effect  as  creating 
sale  or  bailment  is  a  question  of  law  for  the  court ; *  and  this 
would  be  true  though  there  were  no  such  writing,  if  the  facts 
were  agreed  upon.  The  most  common  case,  however,  is  the 
one  in  which  the  facts  are  controverted  or  the  intention  in  dis- 
pute, and  in  these  cases  the  question,  under  proper  instructions, 
is  one  of  fact  for  the  jury  to  determine.2 

§  36.  Sale  to  be  distinguished  from  mortgage. —  So  sale 
is  to  be  distinguished  from  mortgage,  which,  in  most  of  the 
states,  is  a  conditional  sale  of  personal  property  as  security  for 
the  payment  of  a  debt  or  the  performance  of  some  other  obli- 
gation, though,  in  some  states,  it  is  regarded,  like  the  mortgage 
upon  land,  as  a  mere  lien  upon  the  property  rather  than  a  con- 
ditional sale.  The  distinction  between  a  sale  and  a  mortgage 
or  pledge  is  usually  so  obvious  as  not  to  require  extended  con- 
sideration.    Still  — 

§  37.  Sale  to  be  distinguished  from  pledge. —  Sale  is  like- 
wise to  be  distinguished  from  pledge,  which  is  a  deposit  of  per- 
sonal property  by  way  of  security  for  the  performance  of  some 
act,  usually  the  payment  of  a  debt.  Here  though  the  goods 
are  delivered  to  the  pledgee,  who  acquires  a  special  property 
in  them,  the  general  property  remains  all  of  the  time  in  the 
pledgor  until  his  title  has  been  divested,  after  default,  by  a 
foreclosure  of  his  right  to  redeem. 

§  38.  Sale  and  not  a  pledge. —  The  criterion  here,  as  in 

other  cases,  is  usually  the  intention  of  the  parties.  The  mere 
fact  that  one  delivers  goods  to  another  to  whom  he  is  indebted 

'  1  Chickering  v.  Bastress  (1889),  130    Heryford  v.  Davis,  102  U.  S.  235;  Fish 
I1L  206,  22  N.  E.  R.  542, 17  Am.  St.  R.    v.  Benedict,  74  N.  Y.  613). 
309  (citing  Murch  v.  Wright,  46  111.        2  Crosby  v.  Delaware  &  Hud.  Canal 
487,   95   Am.   Dec.   455;    Hervey  v.    Co.  (1890),  119  N.  Y.  334,  36  N.  E.  R 
Rhode  Island  L.  Works,  93  U.  S.  664;    332. 

36 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM   SALES.  [§  39. 

is  not  enough  to  stamp  the  transaction  as  a  pledge.  The  goods 
may  have  been  delivered  in  payment  of  the  indebtedness  and 
not  as  security  for  it,  or,  what  is  in  effect  the  same  thing,  they 
may  have  been  sold  to  the  creditor  in  consideration  of  the  dis- 
charge of  the  debt.  Thus,  in  one  case,1  a  person  who  had  a 
judgment  against  another  accepted  from  the  latter  goods  found 
to  be  worth  $600,  agreeing  to  credit  him  to  the  amount  of 
$350,  and,  if  the  goods  should  sell  for  more  than  this,  to  credit 
him  also  with  the  excess  after  deducting  the  expenses  of  the 
sale.  This,  it  was  urged,  constituted  a  pledge  and  not  a  sale ;  but 
Dillon,  J.,  held  otherwise,  saying  that  there  was  no  objection 
to  a  lona  fide  transaction  of  this  sort,  and  that  the  stipulation 
for  contingent  additional  compensation  did  not  ex  necessitate 
transmute  the  sale  into  a  pledge  or  mortgage.  So  where  the 
treasurer  of  a  savings  bank  made  an  absolute  assignment  of  a 
mortgage  belonging  to  the  bank  to  a  person  who  paid  full  value 
for  it,  agreeing  to  resell  it  to  the  bank  if  the  bank  subsequently 
wished  to  buy  it,  the  transaction  was  held  to  be  a  sale  and  not 
a  pledge;  and  the  fact  that  the  treasurer  afterward  paid  inter- 
est on  the  mortgage  to  the  assignee  was  held  not  to  show  an 
agreement  by  the  bank  to  treat  the  transaction  as  a  loan.2 

§  39.  Pledge  and  not  sale.— But  where,  on  the  other 

hand,  one  delivers  a  chattel  to  another  as  security  for  a  debt, 
or  as  indemnity  for  a  suretyship  therein,  the  law  regards  the 
transaction  as  a  pledge  and  not  as  a  sale ; 3  nor  does  it  alter 
the  case  in  equity 4  or,  generally,  at  law,5  that  the  property  was 
transferred  by  an  absolute  or  unconditional  bill  of  sale  or  as- 
signment, or  even  if  it  be  expressly  stipulated  that  the  pledge 
shall  be  irredeemable.6  So  it  is  a  pledge  and  not  a  sale  where 
a  receipted  bill  of  parcels  has  been  given,  accompanied  by  a 

i  Reeves  v.  Sebern,  16  Iowa,  234,  85  (1885),  57  Mich.  187,  23  N.  W.  R.  724; 

Am.  Dec.  513.  O'Neil  v.  Walker  (1893),  45  La.  Ann. 

2  Commonwealth  v.  Savings  Bank  609,  12  S.  R.  872. 

(1884),  137  Mass.  431.  4  See  following  section. 

s  Morgan  v.  Dod  (1877),  3  Colo.  551 ;  5  See  following  section. 

Upham  v.  Richey  (1896),  163  111.  530,  «  Morgan  v.  Dod,  si^ra. 
45  N.   E.  R.  228;   Berry  v.  Monroe 

37 


§§  40,  41.]  LAW    OF    SALE.  [BOOK   I. 

formal  delivery  of  the  goods,  but  in  reality  intended  only  as 
security  for  a  debt.1 

g  40.  Parol  evidence  to  show  apparent  sale  to  he 

pledge  or  mortgage. —  Some  conflict  of  opinion  exists  as  to 
the  admissibility  of  parol  evidence  to  show  that  a  transaction, 
on  its  face  a  sale,  was  in  reality  but  a  pledge  or  mortgage. 
Where  the  transfer  is  not  accompanied  by  written  evidence,  no 
difficulty  exists;  but  where  the  property  has  been  transferred 
by  a  deed  or  formal  bill  of  sale  purporting  to  convey  an  absolute 
title,  the  courts  are  not  agreed  upon  the  admissibility  of  parol 
evidence  to  show  that  the  transfer  was,  in  reality,  only  as  se- 
curity, and  that  the  transaction  was  therefore  a  pledge  or  a 
mortgage.  By  many  of  the  courts  it  is  held  that  such  evi- 
dence is  not  admissible  at  law,2  though  it  may  be  in  equity;3 
but  other  courts  hold  that  as  between  the  original  parties  or 
those  not  lonafide  purchasers,  the  true  nature  of  the  transac- 
tion may  be  shown  at  law  as  well  as  in  equity,4  and  such  has 
been  declared  to  be  the  weight  of  authority.5  But  even  where 
the  former  rule  prevails,  it  does  not  apply  to  mere  informal 
instruments,  such  as  a  bill  of  parcels.6  The  evidence,  however, 
it  is  said,  must  be  clear  and  convincing.7 

§  41.  Sale  to  be  distinguished  from  mere  agency  to  buy. 

So  a  contract  for  sale  is  to  be  distinguished  from  a  mere  agency 

1  Shaw  v.  Wilshire,  65  Me.  485,  cit-  Jones  v.  Rahilly,  16  Minn.  320  (citing 

ing  Eastman  T.Avery,  23  Me.  248;  Belote  v.  Morrison,  8  Minn.  62;  Phenix 

Beeman  v.  Lawton,  37  Me.  543;  Whit-  v.  Gardner,  13  Minn.  432:  Russell  v. 

aker  v.  Sumner,  20  Pick.  (Mass.)  399;  Southard,  12  How.  (U.  S.)  139;  Hodges 

Hazard  v.  Loring,  10  Cush.   (Mass.)  v.  Insurance  Co.,  4  Seld.  (N.  Y.)  419; 

267 ;  Walker  v.  Staples,  5  Allen  (Mass.),  Chester  v.  Bank,  16  N.  Y.  343 ;  Smith 

34.  v.  Beattie,  31  N.  Y.  542);  Travers  v. 

2Philbrook  v.  Eaton,  134  Mass.  398;  Leopold,  124  111.  431,  16  N.  E.  R.  902. 

Pennock   v.   McCormick,   120   Mass.  5  Jones  v.  Rahilly,  supra. 

275;  Harper  v.  Ross,  10  Allen  (Mass.),  6  Hazard  v.  Loring,  10  Cush.  (Mass.) 

332;  Hartshorn  v.  Williams,  31  Ala.  267;   Hildreth  v.  0"Brien,  10  Allen 

149;  Bryant  v.  Crosby,  36  Me.  562,  58  (Mass.),  104. 

Am.  Dec.  767.  7  Travers  v.  Leopold,  124  111.  431,  16 

3  Jones  on  Chat.  Mortgages,  §  22.  N.  E.  R  902. 


4  Fuller  v.   Parrish,  3   Mich.   211; 


38 


CH.  II.]  TRANSACTIONS    DISTINGUISHED   FROM    SALES.  [§  41. 

to  buy.  Thus  in  a  case !  in  Ohio  it  appeared  that  the  parties 
had  entered  into  an  agreement  evidenced  by  the  following 
writing:  "Canton,  Feb.  7,  1848.  Received  one  hundred  and 
seventy-five  dollars  as  an  advance  to  buy  barley  for  Wm.  Webb, 
for  which  I  do  agree  to  deliver  one  thousand  bushels  of  barley 
to  Mr.  Reynolds'  warehouse  in  Massillon,  at  thirty-five  cents 
per  bushel,  by  the  middle  of  April  next  —  the  said  barley  to  be 
good  merchantable  barley."  Signed  "John  Black."  Black 
thereupon  proceeded  to  buy  barley,  and  in  February  had  pur- 
chased and  stored  in  Reynolds'  warehouse  over  six  hundred 
bushels,  when  the  warehouse  was  washed  away  by  a  flood,  and 
the  barley  was  lost.  Black  afterwards  purchased  enough  more 
to  make  up  a  thousand  bushels,  including  that  lost,  and  on 
April  15th  tendered  to  "Webb  the  warehouse  receipts  for  that 
washed  away  and  the  barley  on  hand,  as  a  compliance  with  his 
agreement.  Webb  refused  the  tender,  though  he  was  willing 
to  accept  the  barley  on  hand  as  so  much  on  account.  It  ap- 
peared also  that  Webb  had  often  gone  to  Black's  store,  where 
he  bought  the  barley,  and  had  examined  it,  and  on  one  occa- 
sion had  condemned  a  load  as  of  poor  quality. 

Said  the  court:  "There  is  but  a  single  question  growing  out 
of  the  facts  in  this  case.  Was  Black  the  agent  of  Webb  in  pur- 
chasing this  barley  at  Massillon  ?  or  was  he  the  vendor  of  a 
thousand  bushels  of  barley  to  Webb,  to  be  delivered  within 
a  given  time,  at  a  certain  place,  and  for  a  stipulated  price  ? 
If  the  former,  the  law  will  cast  the  loss  upon  his  principal ; 
but  if  the  latter,  the  misfortune  will  be  his  own,  unless  he  had 
perfected  a  delivery  of  the  grain  before  the  accident." 

i  Black   v.  Webb  (1851).  20  Ohio,  111.467;  Shields  v.  Pettie,  4N.  Y.  122; 

304,  55  Am.  Dec.  456.     In  the  note  to  Brown  v.  Brooks,  7  Jones  (N.  C),  93; 

this  case  the  editor  says:    "A  rule  Leonard  v.  Winslow,  2  Grant's  Cas. 

similar  to  that  laid  down  in  the  prin-  (Pa.)  139;    Shaw  v.   Nudd,  8    Pick, 

cipal  case  was  followed  in  each  of  (Mass.)  9;  Phillips  v.   Hunnewell,  4 

those  cited  below:  Rodee  v.  Wade,  Greenl.  (Me.)  376;  Garrett  v.  Crooks, 

47  Barb.  (N.  Y.)  53;  Jennings  v.  Gage,  15  La.  Ann.  483;  Roberts  v.  Beatty, 

13  111.  610,  56  Am.  Dec.  476;  Kelly  v.  2  Pen.  &  Watts,  67,  21  Am.  Dec.  410; 

Upton,  5  Duer  (N.  Y.),  336;  Lane  v.  McDonald  v.  Hewett,  15  Johns.  (N.  Y) 

Neale,  2  Stark.  105;  Lovelace  v.  Stew-  351,  8  Am.  Dec.   241;   Penniman  v. 

art,  23  Mo.  384;  Low  v.  Freeman,  12  Hartshorn,  13  Mass.  87." 

39 


§§  42,  43.]  LAW   OF   SALE.  [BOOK   I. 

The  court  then  proceeded  to  apply  various  tests,  and  found 
in  the  language  of  the  agreement,  and  in  the  facts  that  "Webb 
was  not  affected  by  a  rise  or  fall  in  the  market,  and  would  not 
have  been  responsible  to  the  persons  from  whom  Black  might 
buy  on  credit,  and  could  not  dictate  as  to  the  place  or  time  or 
conditions  of  Black's  purchases,  and  had  no  control  over  the 
barley  in  the  warehouse  until  delivered  to  him,  conclusive  evi- 
dence that  Black  "  purchased  this  barley,  not  as  the  agent  or 
factor  of  William  "Webb,  but  on  his  own  private  account,  and 
for  the  purpose  of  filling  a  contract  of  sale,  entered  into  and 
then  subsisting  between  himself  as  the  vendor  and  William 
Webb  as  the  vendee.  In  this  view  of  the  subject,  the  risk  of 
the  property  would  remain  with  Black  until  he  should  deliver 
the  barley  or  transfer  the  contract  thereof  to  Webb.  The  loss 
happened  before  such  delivery  or  transfer,  and  must  be  borne 
by  Black  alone." 

§  42.  .  But  in  a  recent  case  in  Michigan1  it  appeared 

that  a  retail  grocer,  in  ordering  goods  of  a  wholesale  dealer, 
had  on  some  occasions  included  in  his  order,  at  the  request  of 
a  friend,  a  quantity  of  goods  which  the  latter  had  received  and 
paid  for  at  what  they  cost.  On  one  of  these  occasions  the  friend 
refused  to  receive  or  pay  for  the  goods,  and  the  grocer  sold 
them  at  a  loss,  and  brought  action  against  the  friend  to  recover. 
The  defendant  contended,  among  other  things,  that  the  trans- 
action amounted  to  a  sale  and  was  void  under  the  statute  of 
frauds  because  not  evidenced  by  writing,  but  the  court  held 
that  it  was  not  a  sale,  but  a  case  of  agency  to  buy,  and  the 
plaintiff  was  permitted  to  recover. 

§  43.  Sale  to  foe  distinguished  from  agency  to  sell  or  con- 
signment.—  Sale,  further,  is  to  be  distinguished  from  the  cre- 
ation of  an  agency  to  sell.  The  essence  of  sale  is,  as  has  been 
seen,  the  transfer  of  the  title  to  the  goods  for  a  price  paid  or 
to  be  paid.  Such  a  transfer  puts  the  transferee,  who  has  pro- 
cured the  goods  to  sell  again,  in  the  attitude  of  an  owner  sell- 

1  Hatch  v.  McBrien  (1890),  83  Mich.  159,  47  N.  W.  R.  214. 
40 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM   SALES.  [§  44. 

ing  his  own  goods,  and  makes  him  liable  to  the  first  seller  as  a 
debtor  for  the  price,  and  not,  as  an  agent,  for  the  proceeds  of 
the  resale.  The  essence  of  the  agency  to  sell  is  the  delivery 
of  the  goods  to  a  person  who  is  to  sell  them,  not  as  his  own 
property  but  as  the  property  of  the  principal,  who  remains  the 
owner  of  the  goods  and  who  therefore  has  the  right  to  control 
the  sale,  to  recall  the  goods  and  to  demand  and  receive  their 
proceeds  when  sold,  less  the  agent's  commission,  but  who  has 
no  right  to  a  price  for  them  before  sale  or  unless  sold  by  the 
agent. 

Agencies  to  sell  are  very  common ;  the  most  familiar  types 
of  such  agents  being  the  factor  or  commission  merchant,  and 
the  general  dealer  who  receives  goods  for  sale  under  what  is 
usually  termed  a  "  consignment."  In  the  ordinary  cases  of 
this  nature,  the  title  to  the  goods  remains  in  the  consignor  or 
principal  until  sale,  and  the  factor  or  consignee  does  not  be- 
come liable  as  a  purchaser  except,  according  to  the  weight  of 
authority,  when  he  has  sold  under  a  del  credere  commission.1 

§  44.  .  A  qualified  form  of  "  agency  "  which  has  grown 

up  in  modern  times  is  that  which  exists  when  the  owner  or 
manufacturer  of  patented  or  other  proprietary  articles  grants 
the  privilege  of  sale  or  of  exclusive  territory  to  one  who  other- 
wise might  not  be  at  liberty  to  sell  the  goods  in  question.  It 
is  entirely  consistent  with  this  arrangement  that  the  so-called 
agent  is  to  buy,  of  the  proprietor  or  manufacturer,  the  goods 
which  he  is  thus  authorized  to  sell,  and  when  this  is  the  fact 
there  is  little  more  of  "agency"  in  the  case  than  the  name 
itself.  It  is  also  entirely  consistent  with  the  arrangement 
that  the  "  agent "  is  to  sell  the  goods  at  a  price  or  upon  terms 
or  conditions  fixed  by  the  proprietor  or  manufacturer.  A  per- 
son so  situated  is  often,  in  popular  language,  said  to  have  ob- 
tained the  "  agency  "  for  the  goods,  when  all  that  is  meant  is 
that  he  has  obtained  a  more  or  less  exclusive  right  to  buy  and 
resell  them  in  a  prescribed  territory.  The  transaction  is  sim- 
ple enough,  but  the  reports  show  many  cases  in  which  the  par- 

iSee  Mechem  on  Agency,  §  1014;  post,  §  49  and  notes. 
41 


45.] 


LAW    OF    SALE. 


[book  I. 


ties  have,  perhaps,  deceived  themselves  and  have  certainly  at- 
tempted to  deceive  others  by  calling  that  an  "  agency  "  which 
had  no  resemblance  to  agency  in  fact,  but  was  simply  a  sale 
of  a  proprietary  article  with  a  right  of  resale  under  terms  and 
conditions  fixed  by  the  proprietor. 

§  45.  .  It  is,  moreover,  entirely  possible  that  the  rela- 
tions of  the  parties  may  change,  or  be  susceptible  of  change, 
during  the  progress  of  the  transaction.  Thus  there  may  be 
the  creation  of  a  genuine  agency  to  sell,  but,  coupled  with  it, 
the  right  of  the  agent  to  himself  become  the  purchaser  if  he 
so  desires,  or  a  stipulation  that  in  a  certain  contingency  —  as 
if  he  sells  at  a  different  time  or  price  than  that  fixed  —  he  shall 
or  may  be  treated  as  a  purchaser.  In  such  a  case,  if  the  con-' 
tingency  contemplated  occurs,  the  transaction  will  cease  to  be 
an  agency  to  sell  and  will  become  a  sale.1 


i  See  Ex  parte  White  (1871),  L.  R.  6 
Ch.  App.  397.  The  question  here  was 
whether  one  Nevill,  to  whom  Towle 
&  Co.  had  delivered  goods,  was  to  be 
regarded  as  a  purchaser  of  the  goods 
or  only  as  agent  of  Towle  &  Co.  for 
their  sale.  Said  Mellish,  J.:  "It  ap- 
pears to  me  that  the  real  question  is, 
when  Nevill  sold  the  goods,  did  he 
sell  them  as  the  agent  of  Towle  & 
Co.,  so  as  to  make  Towle  &  Co.  the 
vendors,  and  the  persons  to  whom 
he  sold,  purchasers  from  Towle  & 
Co.?  —  or  did  he  sell  on  his  own  ac- 
count, so  as  to  create  the  relation  of 
purchaser  and  vendor  between  him- 
self and  Towle  &  Co.,  and  again  the 
relation  of  vendor  and  purchaser  be- 
tween himself  and  the  persons  to 
whom  he  sold  ?  Now,  it  is  said  that 
he  was  a  del  credere  agent,  and  no 
doubt  it  requires  a  very  minute  ex- 
amination of  what  the  course  of 
business  is,  to  distinguish  between  a 
del  credere  agent,  and  a  person  who 
is  an  agent  up  to  a  certain  point,  that 


is  to  say,  until  he  has  sold  the  goods, 
but  who,  when  he  has  sold  the  goods, 
has  purchased  them  on  his  own 
credit  and  sold  them  again  on  his 
own  account.  And  no  doubt  per- 
sons may  suppose  that  their  relation- 
ship is  that  of  principal  and  agent, 
when  in  point  of  law  it  is  not.  It 
is  quite  clear  that  Nevill,  if  he  sold 
these  goods,  was  to  pay  Towle  &  Co. 
for  them,  at  a  fixed  price  —  that  is 
to  say,  a  price  fixed  beforehand  be- 
tween him  and  them  —  and  at  a 
fixed  time.  Now,  if  it  had  been  his 
duty  to  sell  to  his  customers  at  that 
price,  and  to  receive  payment  from 
them  at  that  time,  then  the  course 
of  dealing  would  be  consistent  with 
his  being  merely  a  del  credere  agent, 
because  I  apprehend  that  a  del  credere 
agent,  like  any  other  agent,  is  to  sell 
according  to  the  instructions  of  his 
principal,  and  to  make  such  contracts 
as  he  is  authorized  to  make  for  his 
principal;  and  he  is  distinguished 
from  other  agents  simply  in  this, 


42 


CH.  II.]  TRANSACTIONS   DISTINGUISHED    FROM    SALES. 


[§46. 


§  46.  Principles  of  construction. —  The  distinction  be- 
tween sale  and  an  agency  to  sell  is  ordinarily  clear  and  simple, 
but,  unfortunately,  many  cases  are  presented  in  which  the 
parties,  for  the  purpose  of  evading  the  operation  of  some  local 
statute,1  of  defeating  the  claims  of  creditors,  or  otherwise,  have 
made  contracts  involving  such  a  confused  jumble  of  the  ele- 
ments of  both  sale  and  agency  that  it  is  exceedingly  difficult 
to  determine  their  true  character.  Certain  of  these  contracts 
have  evidently  been  framed  for  the  purpose  of  concealing  a 


that  he  guarantees  that  those  per- 
sons to  whom  he  sells  shall  perform 
the  contracts  which  he  makes  with 
them ;  and  therefore,  if  he  sells  at  the 
price  at  which  he  is  authorized  by 
his  principal  t©  sell,  and  upon  the 
credit  which  he  is  authorized  by  his 
principal  to  give,  and  the  customer 
pays  him  according  to  his  contract, 
then,  no  doubt,  he  is  bound,  like  any 
other  agent,  as  soon  as  he  receives 
the  money,  to  hand  it  over  to  the 
principal.     But  if  the  consignee  is 
at  liberty,  according  to  the  contract 
between  him  and  his  consignor,  to 
sell  at  any  price  he  likes,  and  receive 
payment  at  any  time  he  likes,  but  is 
to  be  bound,  if  he  sells  the  goods,  to 
pay  the  consignor  for    them    at  a 
fixed  price  and  at  a  fixed  time  —  in 
my   opinion,  whatever    the   parties 
may  think,  their  relation  is  not  that 
of  principal  and  agent.     The    con- 
tract of  sale  which  the  alleged  agent 
makes  with  his  purchasers  is  not  a 
contract    made  on    account  of  his 
principal,   for  he  is  to  pay  a  price 
which  may  be  different,  and  at  a 
time  which  may  be  different  from 
those  fixed  by  the  contract.     He  is 
not  guaranteeing  the  performance, 
by  the  persons  to  whom  he  sells,  of 
their  contract  with   him,  which   is 
the  proper  business  of  a  del  credere 
agent;  but  he  is  to  undertake  to  pay 


a  certain  fixed  price  for  those  goods, 
at  a  certain  fixed  time,  to  his  prin- 
cipal, wholly  independent  of  what 
the  contract  may  be  which  he  makes 
with  the  persons  to  whom  he  sells: 
and  my  opinion  is  that,  in  point  of 
law,  the  alleged  agent  in  such  a  case 
is  making,  on  his  own  account,  a 
contract  of  purchase  with  his  alleged 
principal,  and  is  again  reselling. 
But  if,  in  addition  to  this,  he  is 
allowed  to  change  the  character  of 
the  goods  —  if  he  may  turn  wheat 
into  flour,  or  grey  goods  into  dyed  or 
bleached  goods,  and  to  sell  those 
changed  goods  on  any  terms,  and  at 
any  price  he  pleases  —  that  makes  it 
still  clearer  that  he  is  not  selling  on 
account  of  a  principal,  but  that  he  is 
selling  on  his  own  account;  for,  of 
course,  if  he  were  selling  on  account 
of  his  principal,  and  the  principal 
could  sue  upon  those  contracts,  the 
principal  must  be  liable  to  be  sued 
upon  them." 

!As,  for  example,  in  Braunn  v. 
Keally  (1891),  146  Pa.  St.  519, 23  Atl.  R. 
389.  28  Am.  St.  R.  811,  where  the  pur- 
pose was  to  avoid  the  statute  of 
Pennsylvania  against  the  sale  of  oleo- 
margarine; and  Norwegian  Plow  Co. 
v.  Clark  (1897),  102  Iowa,  31,  70  N.  W. 
R.  808,  where  the  purpose  was  to 
avoid  compliance  with  a  recording 
act. 


43 


§*c.] 


LAW    OF    SALE. 


[BOOK    I. 


sale  under  the  guise  of  an  agency,1  while  others  have  been 
drawn  with  a  view  to  having  them  construed  as  contracts  of 
sale  or  agency  as  might  best  suit  the  convenience  or  subserve 
the  purposes  of  their  framers.2 

In  construing  these  anomalous  instruments,  courts  look 
chiefly  at  the  essential  nature  and  preponderating  features  of 
the  whole  instrument  and  not  at  the  peculiar  form  of  isolated 
parts  of  it.  It  matters  very  little  what  the  parties  have  chosen 
to  call  their  contract.3  Misfitting  or  misleading  names  may  be 
very  easily  applied,  but  they  cannot  be  permitted  to  conceal 
or  change  the  legal  nature  of  the  instrument.  If  the  parties 
have  made  a  contract  which  really  operates  to  transfer  the 
title,  it  is  a  sale,  notwithstanding  they  may  have  labeled  it  a 
"  special  selling  factor  appointment,"  or  have  expressly  stipu- 
lated that  the  alleged  factor  "  shall  never  purchase  such  goods 
for  his  own  account." 4  So  with  regard  to  the  use  of  the  term 
"consign:"  it  may  express  the  true  state  of  the  case,  and,  if  so, 


1  Thus  in  Braunn  v.  Keally,  supra, 
the  court  say:  "Notwithstanding  the 
ingenious  color  of  agency  thus  sought 
to  be  thrown  over  it,  this  is  a  con- 
tract of  sale." 

2  In  Arbuckle  v.  Kirkpatrick  (1S97), 
98  Tenn.  221,  39  S.  W.  R.  3,  36  L.  R. 
A.  285,  the  court  say:  "The  contract 
is  certainly  a  remarkable  one,  par- 
taking in  many  of  its  provisions  of  a 
contract  of  agency  and  in  many 
others  of  a  sale.  It  is  evidently  in- 
tended as  either  or  both,  as  might 
suit  the  convenience  or  subserve  the 
purposes  of  the  complainants.  It  pur- 
ports to  be  copyrighted,  for  what 
reason  is  not  stated;  but  the  copy- 
right is  evidently  procured  on  ac- 
count of  the  unusual  and  extraordi- 
nary provisions  of  the  instrument 
(if  there  be  a  copyright)." 

3  In  Heryford  v.  Davis  (1880),  102 
U.  S.  235,  in  dealing  with  an  analo- 
gous question,  the  court,  by  Justice 


Strong,  said:  ""What,  then,  is  the 
true  construction  of  the  contract? 
The  answer  to  this  question  is  not 
to  be  found  in  any  name  which  the 
parties  may  have  given  to  the  in- 
strument, and  not  alone  in  any  par- 
ticular provisions  it  contains,  discon- 
nected from  all  others,  but  in  the 
ruling  intention  of  the  parties,  gath- 
ered from  all  the  language  they  have 
used.  It  is  the  legal  effect  of  the 
whole  which  is  to  be  sought  for.  The 
form  of  the  instrument  is  of  little 
account,"  To  the  same  effect:  Her- 
vey  v.  Locomotive  Works  (1876),  93 
U.S.  664;  Sturm  v.  Boker  (1893),  150 
U.  S.  312. 

4  As  in  Arbuckle  v.  Kirkpatrick, 
mpra;  Arbuckle  v.  Gates  (1898),  95 
Va.  802,  30  S.  E.  R.  496;  Snelling  v. 
Arbuckle  (1898),  104  Ga.  362,  30  S.  E. 
R.  863;  Hutton  v.  Lippert  (1883),  8 
App.  Cas.  309. 


44 


CH.  II.]         TRANSACTIONS    DISTINGUISHED   FEOM    SALES.       [§§  47,  48. 

it  will  be  given  effect;1  or  it  maybe  a  mere  subterfuge,  and  if 
it  be  the  latter  "  there  is  no  magic  in  that  word  which  can 
take  from  the  transaction  its  real  character."  2  The  same  rules 
would,  of  course,  apply  were  the  word  "sold"  or  "bought" 

used. 

In  doubtful  cases,  moreover,  these  ambiguous  contracts  are 
construed  most  strongly  against  their  framers,  if  such  a  con- 
struction is  necessary  to  protect  the  rights  of  others.  As  re- 
marked in  one  case  of  such  a  contract:  "  In  view  of  its  uncer- 
tainty and  contradictory  provisions,  the  court  will  see  that 
third  persons  are  not  prejudiced  by  its  construction."3 

§  47.  Illustrations  of  construction.— The  cases  in- 
volving this  question  have  now  become  so  numerous,  and  the 
variety  of  forms  of  contract  so  great,  that  it  would  be  imprac- 
ticable to  attempt  a  full  exposition  of  them  in  the  text.  A  few 
typical  cases  only  will  therefore  be  selected,  leaving  to  the  foot- 
notes the  fuller  exposition  of  the  residue.     Thus  — 

§  48. Agency  and  not  sale.—  In  one  case,4  often  referred 

to,  it  appeared  that  Benson  and  Sears  had  entered  into  a  con- 
tract, a  copy  of  which  is  set  forth  in  the  margin.    While  oper- 

i  As  in  Sturm  v.  Boker  (1893),  150  care  or  sale,  and  did  not  by  any  ex- 
U  S  312  where  the  contract  was  press  or  fair  implication  mean  the 
contained  in  letters  stipulating  for  sale  by  the  one  or  purchase  by  the 
the  consignment  of  goods  for  sale,  other."  Audit  was  further  held  that 
the  proceeds  over  a  certain  amount  this  result  was  not  to  be  changed  be- 
to  be  divided  between  the  parties,  cause,  in  sending  the  goods  under  the 
and  the  unsold  goods  returned.  The  contract,  they  were  billed  as  goods 
court  said  that  it  was  "too  clear  for  "bought."  Tosame  effect:  Dittmar 
discussion  or  the  citation  of  authori-  v.  Norman  (1875),  118  Mass.  319 
ties  that  the  contract  was  not  a  sale  *  Chickering  v.  Bastress  (1889),  130 
of  the  goods  by  the  defendants  to  I1L  206,  22  N.  E.  R  543,  17  Am.  St. 
Sturm     The  terms  and  conditions  R.  309. 

under  which  the  goods  were  deliv-  >  Arbuckle  v.  Kirkpatrick,  supra. 

ered  to  him  import  only  a  consign-  *  Eldridge  v.  Benson  (18ol),  7  Cush. 

ment.     The    words    'consign'    and  (Mass.)   4S3.     The  contract  read  as 

'consigned 'employed  in  the  letters  follows:  "Said  Robert  Sears    .    .    . 

were  used  in  their  commercial  sense,  agrees  to  furnish  such  good  and  re- 

which  meant  that  the  property  was  sponsible  persons  as  the  said  George 

committed  or  intrusted  to  Sturm  for  W.Benson    .    .    .     may  designate 

45 


§  48.]  LAW    OF    SALE.  [BOOK    I. 

ating  under  this  contract,  Eldridge,  as  creditor  of  Benson,  had 
attached,  as  the  property  of  the  latter,  the  books  in  the  hands 
of  the  agents.  Sears  thereupon  intervened,  claiming  that  the 
books  attached  were  his  property  and  therefore  not  subject  to 
such  attachment,  thereby  making  it  necessary  to  determine 
whether  the  contract  between  himself  and  Sears  amounted  to 
a  sale  or  only  to  the  creation  of  an  agency  to  sell.  It  was  held 
that  the  latter  was  the  true  construction.  Bigelow,  J.,  said: 
"  The  contract  is  inartificially  and  obscurely  drawn,  and  it  is 
somewhat  difficult  to  ascertain  the  precise  purport  of  all  its 
stipulations;  but  upon  a  careful  consideration  of  its  several 
provisions  we  are  of  the  opinion  that  it  created  between  the 
parties  the  relation  of  principal,  and  agent,  and  not  that  of 
vendor  and  vendee.  The  leading  feature  of  the  agreement, 
which  of  itself  would  be  quite  sufficient  to  determine  its  mean- 
ino;,  is  the  right  reserved  to  the  defendant  to  return  such  por- 
tion  of  the  books,  delivered  to  him  under  the  contract,  as  might 
not  be  disposed  of  by  the  agents.  Such  a  stipulation  is  wholly 
inconsistent  with  an  absolute  sale  of  the  property  to  the  de- 
fendant, and  clearly  indicates  the  intent  of  the  parties  to  have 
been  that  the  right  of  property  should  remain  in  the  claimant 
(Sears).  The  elementary  definition  of  a  sale  is  the  transmuta- 
tion of  property  from  one  man  to  another;  but  no  such  change 
takes  place  when  it  is  agreed  between  the  parties  that  the  prop- 

or  elect  to  act  as  agents  for  the  sale  full  payment  of  the  above-named 
of  Sears'  Pictorial  School  Library,  price  of  $13.50  per  set  .  .  .  as 
with  said  works  at  $13.50  per  set  of  may  be  delivered  to  all  such  persons 
twelve  volumes,  to  said  Benson,  sup-  as  he  (Benson)  may  appoint  and  to 
plying  their  orders  and  receiving  whom  he  may  direct  said  books  to 
their  remittances,  and  placing  all  be  sent.  It  is  further  agreed  between 
money  so  received,  above  the  amount  said  parties  that  settlements  shall 
of  $13.50  as  above  specified,  to  the  be  made  quarterly  for  all  bills  con- 
credit  of  said  Benson,  and  at  the  tracted  by  said  Benson  on  his  ac- 
close  of  the  labors  of  the  said  agents  counts."  See  also  the  numerous 
to  receive  all  the  books  returned  by  cases  cited  in  the  following  note; 
them  uninjured  and  credit  the  same  also  Brown  v.  Church  Co.,  55  111.  App. 
to  said  Benson  at  the  cost  price  above  615;  Keystone  Watch  Case  Co.  v. 
specified;  and  the  said  George  W.  Fourth  Street  Nat.  Bank  (1900),  194 
Benson  .  .  .  hereby  guarantied  Pa.  St.  535,  45  Atl.  R.  328. 
to  said  Robert  Sears  the  security  and 

46 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM   SALES.  [§  49. 

erty  may  be  returned  to  the  person  from  whom  it  was  received. 
To  test  and  illustrate  the  correctness  of  this  principle,  as  appli- 
cable to  the  case  at  bar,  let  us  suppose  all  the  agents  to  have 
been  unsuccessful  in  disposing  of  the  books,  and,  at  the  close 
of  their  efforts  to  sell  the  work,  to  have  had  on  their  hands  all 
which  they  originally  received  from  the  claimant.  By  the  terms 
of  the  contract  the  defendant  would  have  the  right  to  return  to 
the  claimant  all  of  the  books  which  had  been  received.  By  con- 
struing this  contract,  therefore,  as  a  contract  of  sale  by  which 
the  property  became  vested  in  the  defendant,  we  should  be  led 
to  the  necessary  but  absurd  conclusion  that  a  vendee  to  whom 
the  absolute  right  of  property  had  passed  could  still  retain  the 
right  of  returning  it  to  his  vendor."  Another  reason  leading 
to  the  same  conclusion  was  found  in  the  fact  that  the  agents 
appointed  by  Benson  might  order  books  direct  of  Sears  and 
remit  the  proceeds  to  him,  and  the  provisions  for  charging  and 
crediting  were  held  to  be  intended  to  show  the  extent  of  Ben- 
son's liability  under  the  guaranty  for  the  agents.1 

§  49.  Sale  and  not  agency. —  On  the  other  hand,  in  a 

case  typical  of  the  more  modern  and  more  complicated  form  of 
contract,  a  contrary  result  was  reached.  Here  Arbuckle  Bros., 
the  manufacturers  of  a  certain  brand  of  coffee,  had  made  with 
Kirkpatrick  &  Co.,  who  were  retail  dealers,  a  contract  to  sup- 
ply the  latter  with  the  coffee  for  sale  upon  the  terms  set  forth 
in  the  margin.2  Kirkpatrick  &  Co.  having  made  an  assign- 
ment for  the  benefit  of  their  creditors,  Arbuckle  Bros,  sought 

1  Many  other  cases  to  the  same  ef-  special  selling  factor  for  our  roasted 
feet  will  be  found  stated  in  the  fol-  coffee,  restricting  and  defining  your 
lowing  note.  duties  and  obligations  by  the  follow- 

2  Arbuckle    Bros.    v.    Kirkpatrick  ing  provisions,  to  wit: 

(1897),  98  Tenn.  221,  39  S.  W.  R.  3,  36  "  I.  That  all  goods  consigned  on 

L.  R.  A.  285,  60  Am.  St.  R.  854.  your  requisitions  on  us  shall,  until 

The  contract  here  was  in  the  fol-  sold  in  regular  course  of  business, 

lowing  form:  and  to  bona  fide  retail  customers,  re- 

"Form  C—  Special  Selling  Factor  main  our  property,  with  the  title  in 

Appointment.  us,  and  shall  merely  be  held  by  you 

"  Arbuckle  Brothers.  as  our  factor,  and  shall  at  all  times 

"  Subject  to  prompt  acceptance  we  be  subject  to  our  order  for  disposal 

take  pleasure  in  appointing  you  a  or  removal  on  payment  of  all  claims 

47 


§^.] 


LAW    OF    SALE. 


[BOOK    I. 


to  recover  the  coffee  unsold  and  the  proceeds  of  that  sold,  upon 
the  ground  that  Kirkpatrick  &  Co.  were  merely  agents,  and 
that  the  title  to  the  coffee  unsold,  and  to  the  proceeds  of  that 


against  them  for  advances  of  money 
made  to  us,  and  all  charges  for  dray- 
age,  storage  and  insurance. 

"  II.  That  you  shall  never  purchase 
such  goods  for  your  own  account. 

"  III.  That  such  goods  shall  be  sold 
and  billed  by  you  in  your  own  name, 
but  only  as  our  factor,  according  to 
the  laws  relating  to  factors,  and  only 
at  such  prices  and  on  such  terms  as 
we  may  give  you  from  time  to  time. 

"  IV.  That  you  shall  guaranty  the 
sale  of  each  consignment,  and  the 
payment  therefor,  within  sixty  days 
from  its  date,  and  shall  assume  all 
risk  as  to  the  credit  of  the  parties  to 
whom  you  sell,  and  make  all  collec- 
tions for  goods  sold,  at  your  own  ex- 
pense. 

"V.  That  you  shall  remit  us  the 
full  amount  of  each  consignment, 
less  the  commissions  as  herein  pro- 
vided, by  the  end  of  such  sixty  days, 
at  a  price  designated  to  you  at  the 
time  of  the  consignment,  whether 
the  whole  of  said  consignment  shall 
have  been  sold  by  you  or  not,  and 
whether  or  not  you  shall  have  col- 
lected the  proceeds  thereof. 

"VI.  That  you  shall  insure  us 
against  any  decline  in  the  price  of 
the  unsold  goods  held  by  you  as  our 
factor. 

"VII.  That  you  shall  be  entitled 
to  any  advance  in  the  price  of  such 
unsold  goods;  and 

"  VIII.  That  you  shall  be  entitled 
to  the  following  allowances  and  com- 
missions, to  wit: 

"(1)  For  carting  and  storing,  one- 
eighth  cent  per  pound. 

"  (2)  For  insuring  against  fire,  wind 
and  water,  one-eighth  cent  per  pound. 


"(3)  For  insuring  payment,  one- 
eighth  cent  per  pound. 

"  (4)  For  insuring  against  decline  in 
price,  one-eighth  cent  per  pound. 

"  (5)  For  selling  the  goods,  one  cent 
per  pound. 

"  IX.  That,  in  addition  to  the  above, 
we  shall,  on  all  advances  made  to  us 
prior  to  ten  days  from  date  of  con- 
signment, allow  a  discount  of  one 
per  cent.,  and  on  advances  made 
alter  ten  days,  but  prior  to  sixty 
days,  we  shall  allow  interest  at  the 
rate  of  six  per  cent,  per  annum  for 
the  time  between  date  of  said  ad- 
vance and  said  sixty  clays. 

"  X.  That  if  you  neglect  to  remit  to 
us  the  full  amount  of  any  consign- 
ment, less  the  commissions  as  herein 
provided,  by  the  end  of  sixty  days 
from  its  date,  we  shall  make  draft 
upon  you,  and  allow  you  a  selling 
commission  of  only  one-half  of  one 
cent  per  pound ;  and  if  said  draft  be 
returned  unpaid,  we  shall  only  allow 
you  a  selling  commission  of  one- 
fourth  of  one  cent  per  pound ;  and  if 
you  do  not  remit  us  within  four 
months  from  date  of  each  consign- 
ment, no  commissions  or  discounts 
of  any  nature  whatever  will  be  al- 
lowed. 

"XL  That  you  will  maintain  our 
established  selling  price,  terms,  con- 
ditions, and  limitations  of  consign- 
ment in  such  states  and  territories 
as  may  be  designated  by  us;  but,  in 
the  event  of  any  violation  thereof, 
you  are  to  pay  us  the  sum  of  fifty 
dollars  ($50)  for  every  such  viola- 
tion. 

"XII.  Thatthisfactorappointment 
may  be  revoked  by  us  at  any  time  at 


48 


CH.  II.]  TRANSACTIONS    DISTINGUISHED   FROM   SALES. 


[§49. 


sold,  was  still  in  Arbuckle  Eros.  After  reviewing  many  cases 
the  court  said :  "  Without  attempting  to  run  a  parallel  between 
the  present  case  and  those  which  have  been  cited  and  com- 


our  option.  Copyright,  1891,  by  Ar- 
buckle Bros." 

This  appointment  was  accepted  by 
Kirkpatrick  &  Co.  on  January  28, 
1895,  in  the  following  language: 
"  Dear  Sir:  We  beg  to  herewith  ac- 
cept your  appointment  as  'Special 
Selling  Factor '  of  your  roasted  cof- 
fees, subject  to  all  the  provisions, 
limitations,  and  obligations  expressed 
in  your  notice  of  appointment,  Form 
C,  dated  at  New  York,  January  28th, 
1895." 

Under  this  contract,  from  February 
5,  1893.  to  April  3,  1895,  twenty-five 
different  lots  of  five  cases  each  of  this 
coffee  were  received  by  Kirkpatrick 
&  Co.,  the  value  of  which  was 
$3,041.70.  The  coffee  was  sold  usually 
in  one-case  lots,  and  almost  daily,  and 
Kirkpatrick  &  Co.,  before  making 
their  assignment,  April  6,  1895,  had 
collected  upon  such  sales  $830.55,  and 
used  the  proceeds  in  their  business. 
Four  cases  were  on  hand  when  the 
assignment  was  made,  and  these 
were  delivered  up  to  the  plaintiffs 
upon  their  demand,  by  the  assignee, 
as  before  stated.  For  the  remainder 
there  were  accounts  on  the  books  of 
Kirkpatrick  &  Co.  against  their  cus- 
tomers, and  these  accounts  were 
transferred,  and  went  into  the  hands 
of  the  assignee.  The  accounts  for 
coffee  sold  by  Kirkpatrick  to  their 
customers  were  not  kept  separate 
from  other  items  sold  them,  but  the 
amounts  and  names  of  customers 
can  be  traced  from  the  books  by  cull- 
ing out  the  items  relating  to  coffee. 
Kirkpatrick  &  Co.  had  never  paid  or 
advanced  anything  on  consignments 


now  in  question,  and  complainants 
have  received  nothing  thereon. 
The  court,  in  its  opinion,  said: 
"Complainants  claim  that  Kirk- 
patrick &  Co.  were  their  'special 
selling  factors,'  so  constituted  by  the 
written  agreement  above  set  out,  and 
that  coffee  was  consigned  to  and  sold 
by  Kirkpatrick  &  Co.  as  such.  It 
is  therefore  maintained  by  them: 
(1)  That  the  money  collected  by  Kirk- 
patrick &  Co.  upon  sales  of  coffee 
consigned  to  them  was  complainants' 
money;  and,  as  Kirkpatrick  &  Co. 
mingled  same  with  their  own,  and 
finally  used  it  in  their  business,  the 
claim,  therefore,  is  a  preferred  one, 
and  must  be  first  paid  out  of  assets 
in  hands  of  assignees;  and  (2)  com- 
plainants are  entitled  to  follow  into 
assignees'  hands  all  unpaid  accounts 
created  for  sales  of  Arbuckle  coffee 
on  or  subsequent  to  February  5, 
1895.  Such  indebtedness  belongs  to 
complainants  because  created  upon 
sales  of  their  goods  by  their  factor. 
These  contentions  were  denied  by 
the  chancellor  and  the  court  of  chan- 
cery appeals,  the  latter  holding  that 
the  contract  between  the  parties 
amounted,  in  legal  effect,  to  a  sale  of 
the  coffee  to  Kirkpatrick  &  Co.  Com- 
plainants have  appealed,  and  assign 
the  above-stated  actions  of  courts 
below  as  error. 

"  Defendants  contend,  on  the  other 
hand:  (1)  That  the  contract  itself  is 
a  sale,  and  not  an  agency  or  factor 
contract.  The  mere  name  given  it 
does  not  determine  its  status  or  ef- 
fect. (2)  That  even  if,  under  the 
contract,  the  title  to  the  goods  de- 


49 


I  W  I 


LAW    01  II 


|  BOOK   I. 


mented  upon,  we  merely  state  tome  of  the  more  prominent 

i.  .linn    i  in. -ii  we  think  characterize  this  contract  as  one  of 
gale,  and  nol  of  agency,     Et  will  be  noted  thai   undernoeir 

[j  , ,,  ,i  i,,  i  i,  i  pa{ ,  [|  i   /.   < ',,.  would  it.  did  othei     fcapli    artli  lei    in   11 

i.,,  ..nun,   \ii,,,-ii.   Bros  until  they  stock,  to  whom  11  pleased,  when  It 

■•.,.     old   i>y   Kirkpatrick    S    Co.,  pleased,  and  Is  whatever  territory 

■■  i ,.  I,  iold,  i  "i  patrii  i-  &  Co  be<  i It  pleas*  d  and,  so  fai  ai  we  can  see, 

i.  1. 1.. i    .,i   \t  buckle  Bros,  i a  whatever  time  it  pleased,    ttren 

\,.,\     .,    ,i,,,  i.,,  ii,,. .  offi .  d<  "  d  no  a<  count  of  sale  i  t<>  com- 

m rrectdetei  mlnal  Ion  ol  I  hi  plainanl    and  w  as  not  called  upon 

i  .      d(  i"  ".i  upon  i he  propei  to  do  sc     tn  11       di     bo  its  retail 

construi I  the  written  ag terchant  customers  this  coffee  was 

i  between  thi   partii   ,  and  then  old  and   billed    and  shipped  with 

,,,,,,  ,    ,,i    dealing    between    them  othei  — d    and  when  Its  accounts 

,  i  ,        <  lomplainants   claim    that  wer<    i  olli  oti  d  from  its  cui  tomers, 

,  ,. t  abov<    et  out  i  oni  I H  ut(  d  i  mbri ■•    I  be  ■    •  offees,  the   pro 

i.  ii  i  pal  1 1(  i     ■■     i '"    1 1"  b    factors  e<  i  di  w<  re  depo  lited  w  Ith  tl i  n 

und(  i  a  del  credere  c< n,  and  era!  fundi   of  the  Bi  tn,  and  paid  oul 

thai  this  ii "  all  thin      a<  ti  d  a  en  II     i  hei  I    1 1  I  Ing  Its i  ol 

,,,  i,      ti,,    ,  ,,,ni   ..i   i  i, .in. .  i  j   ap  Habilil  les     Foi  •<  w  bile  the  Firm  paid 

,„  ,i  ,,  ,,,,1  thai     This  firm  operated  foi  this  i  offee  bj  Its  i  bei  Its  upon  Its 

under  a  previou   < acl  withthi  i  bank  In  the  city  of  Nashville,  just  as 

,  omplalnanl    foi    i    eralyi  ai      I  bl  H  paid  any  othei  demand  upon  it. 

i ui  rai  i  ■■  i    ■ i     ii, ni. ii  in  i  rpon  obji  i  I  Ion  being  made  to  re 

H    i as  to  thi  one  In  I  bl   i  a  le  i  eh  Ing  I  b(  e  i  becks  In  paj  ment,  Hu- 
ll was   illghtlj  differenl   ne  <>r  Arm  openedan  aooounl  witha 

more  of  iti   terms,  but  tl urseof  of  New  Stork  bankers,  and  forwarded 

di  aling  ol  I  bi  pari  Ii    bel  ween  I  bera  i  hei  I     upon  them  to  c plainanl 

i  i  ,      o  far  e    we  i  an   1 1  from  I  he  In   el  tli  meal    and  these  ohei  Its  ap 

i  did  nol  change  In  anj  pai  peartohavel a  received  without 

1 1,  ui. aterlaltothe  Issue  In  dis  question  or  objecl until  the  as 

puti     The  complainan!    bad  a  wan       l|  nmenl  ol  the  firm    The  complain 

Itou i]  lll<     •  11  b  a  man  In  anl     nevei    Inquired  w  bethel  their 

chargi    of  It,  in  which  thej  kept  a  eoffei  i  were  in  ured,  oi  whether  this 

Upplj  ,,i  ii,,  i,  coffee      When  the  Brm  paid  for  storage,  or  anything  ol 

defendanl  Brm  wanted  an)  coffee,  the  kind.'   Other  facts  found  by  thai 

it  i ,.. i i  i  in  agent  ol iplainants  courl  have  already  b i  adverted  to, 

oi  the  quantity  wanted,  and  it  was  and  still  others  will  be  mentioned 

i  applied,  w  Ith  .i  bill  oi   stati  ment,  horeaftei   ic  fai  as  nei  e    ai  j 


on    i   pi.   .i  Ibed   foi  m,  ol  i  he  price 

and  i "i   1 1"-  tran  fei   oi   i  on 

i  umenl .  formini     In      al 

.mi  line  w  it  ii  t  he  proi  I  Ion  i  of  1  he 
oonl  rai  t  made  w  it  h  i  heii  merchants 
dealing  In  theii   coffei  i     When  de 


■  Kirs  pal  i  loh  &  Co  are  called  In 
i  Ik.  oonl  rod  ipei  lal  selling  fai  toi  ■■.' 
and  i  he  Insl  i  umenl  ;i  '  spei  lal  selling 
factoi  appoinl  ment.1  Still  the  propei 
,  ,,n  1 1 H,  i  Ion  of  1 1"'  contracl  Is  nol 
dependent  on  anj  nun.'  given  to  I  he 


livered,  the  firm  sold  the  ooffeei  ■•      Instrument   bj  the  parties,  and  not 

50 


I  II    II 


•. ,      [(     .  •  •  i  i  \>,i  i  -ill  ■  |.    |  LLEB. 


<  inn  .1  hi.  i  .  v\ ,  i ,  an j  ■ I  •  evt  r  bo  be  returned  to  A.rbuokle  a 

I  q      All  iiiii-i  be  paid  for  in  sixtj  daj  •.  whether  sold  or  not 

There  ii  no  stipulation  to  buj  at  the  expiration  oi   lixtj  • 

on  miu  one  prm  I  ■•■".  bul  upon  <  he  the  •      made  ba\  • 

entire  bodj  ol  th ntract,  -in- 1  the  delivered  up  to  complainant  •.  and  u 

i  »  hole.    Singi  i  to  them  tl li  now  no  ■  ■• 

Manul  Co,  v.  Cole,  p  maining  que  il  Ion  ia 

10   Am.   B  w  h.  i  hei    1  he    aniounl  ■    due    In  Irk- 

1  ■     B     I  ■•    -       I 

ii.  i  j  foi  i  i    Davis,  10    I  old  can  be  I ullj  claimed  bj 

•  m      \\ .  think    II  rerj  evidenl  thai  complainant  m  onlj  be 

whether  we  p     trtl  tl i tract  ai  upon  the  tl rj    thai    Kirkpatrlck 

tale,  oi  >impl]  ■  ' ting  an  a   I  ■    were  the  of  Ai  buckle 

agem  y  to  Bell,  is  not  mat  u  Bros,  to  tell  i  hi  ind  on  I  he 

as  the  monej  already  collected  from  theory  thai   the  pp i    a(tei 

I.-. I  i.\  Kui.  pal  1 1. 'I.  ;,ii. i  befoi  e  colli 

a    i  '■>    i  ■  .  om  erned      the  amounl  coffei     bed  Bd   I  he 

red  by  then  property  ol    complainanl  ■     In    '1<> 
no!   been  kepi  il 

■   i mi. i .  and  ii  .i —  no!  appeal  material    i  ei   n  hel her    tln> 

t  hal   anj  ol  t  he  pp  [|    he  held 

■         mus  of  thi  oi  Into  thi  hel  hei 

to  in  ■  i  in  this  case  oi  oupj  i  he 

i  urns  have  been  el 

ided  in  i ii"  general  business  ol  mil    Ion  '    n oui t  ol  chai 

k  ii  i.  |H  1 1.  i.   a    r...   i.iii    foi    what  appee  opinion  that,  while 

pin  |.  ppear,  and  I  hej  t 

titifled,  and  can  tract  that  I  on  I  he 

to  I  kdy  part  of  Kii  there 

I  in,  Kirkpatrick  &  I  lly  I  he  fifth 

they  are  foi  liioh  could  onlj 

used  by  them  fi  Is  Bold  and  be  construi 

n.. i   paid  for,  i". I  iIh-  urn  i   be  i he  i  de,  and   m  I 

..  h,i  i,,  i  they  received  I 

of  the   tale  as  their  own  oi    i  proi  Ide  i  hal  I  1 1  Icfc  A  Co 

they  were  kepi  n  :ii  i  he  • 

md  Idenl  [fled,  no  trust  can  w  hel  hei    lold  oi  not,  and 

....... i  upon  the  fun      oi  w  hethei    i  he    pro<  eeda    have 

lu  thi  collected  or  not  t  and  I  made 

\  i.i  a   i ■'.,■  i.      uarantj    •  omplalnanl 

14)  and  caseB  cited;   Uctn  anj  dei  line  In  i and  enl  Itled  to 

i  .i.ii       .       ,     |   \\     i  my  ad    i  ind  in  the  tenth  cl 

13  Am    II    i.  D  '     ■  i    i     \  I  laii  id  to 

.   w  draw  drafts  il  remil  I 

R  Q  '■.       i    i:    L 715, 49  Lm     II    I  In  propel   time      li  ■ 

'.'in     Thi  a  court  of  ol 

51 


§49.] 


LAW    OF    SALE. 


[book  I. 


but  the  contract  clearly  contemplates  a  payment  without  fur- 
ther bargain,  when  that  time  arrives,  and  implies  a  present 
sale,  on  a  credit  of  sixty  days.     Kirkpatrick  &  Co.  could  sell 


substance,  that  complainants  cannot 
receive  tlie  price  of  the  goods,  and 
afterwards  claim  the  goods  them- 
selves; and  when  the  price  is  paid 
the  property  could  not  be  longer 
claimed.  It  is  insisted  that  these 
provisions  in  the  contract  cannot  be 
considered,  because,  as  a  matter  of 
fact,  Kirkpatrick  &  Co.  were  not 
made  liable  for  any  coffees  at  the 
expiration  of  sixty  days,  nor  were 
they  called  upon  to  make  good  any 
decline  in  price,  and  hence  the  con- 
ditions allowing  these  sections  to  be 
looked  to  have  not  arisen.  It  is  true, 
none  ef  the  funds  involved  in  this 
case  arise  directly  from  the  operation 
of  these  sections,  but  they  are  parts 
of  the  same  entire  contract,  and  pre- 
scribe the  rights  and  liabilities  of 
the  parties  under  the  contingencies 
named,  and  must  be  looked  to,  in  or- 
der to  determine  the  real  intent, 
force  and  effect  of  the  instrument. 
They  are  not  detachable,  nor  to  be 
considered  alone,  nor  is  the  remainder 
of  the  contract  to  be  considered  with- 
out them. 

"  We  have  been  cited  by  the  very 
able  counsel  of  complainants  to  a 
large  number  of  cases  construing 
.contracts  more  or  less  like  the  con- 
tract now  under  consideration,  and 
it  is  claimed  the  principles  laid  down 
in  them  are  conclusive  in  considera- 
tion of  this  contract.  Among  the 
cases  cited  for  complainants  are: 
Metropolitan  Nat.  Bank  v.  Benedict 
Co.,  36  U.  S.  App.  604,  20  C.  C.  A.  377, 
74  Fed.  R.  182;  Burton  v.  Goodspeed, 
69  111.  237;  Norton  v.  Melick,  97  Iowa, 
564,  66  N.  W.  R.  780;  Walker  v.  But- 
terick,  105  Mass.  237;  National  Cord- 


age Co.  v.  Sims  (Neb.),  62  N.  W.  R. 
514;  Sturm  v.  Boker,  150  U.  S.  312, 14 
Sup.  Ct.  99;  Lenz  v.  Harrison  (111.), 
36  N.  E.  R.  567;  Balderston  v.  Rubber 
Co.,  18  R.  I.  338,  27  Atl.  R.  507,  49  Am. 
St.  R.  772;  Barnes  Safe  &  Lock  Co. 
v.  Bloch  Bros.  Tobacco  Co.,  38  W.  Va. 
158,  18  S.  E.  R,  482,  22  L.  R.  A.  850, 
45  Am.  St.  R  846:  National  Bank  v. 
Goodyear,  90  Ga.  711,  16  S.  E.  R.  962; 
Milburn  Mfg.  Co.  v.  Peak,  89  Tex.  209, 
34  S.  W.  R.  102;  Moline  Plow  Co.  v. 
Rodgers,  53  Kan.  743,  37  Pac  R.  Ill, 
42  Am.  St.  R.  317.  We  examine  these 
cases  with  reference  to  the  case  now 
on  trial. 

"Metropolitan  Nat.  Bank  v.  Bene- 
dict Co.,  36  U.  S.  App.  604,  20  C.  C. 
A.  377,  74  Fed.  R  182.  Stern  Auc- 
tion &  Commission  Company  agreed 
witli  Benedict  &  Co.,  manufacturers 
of  clothing,  as  follows:  'We  agree 
to  realize  for  consignment  of  ready- 
made  clothing  of  Benedict  &  Co.,  as 
per  memorandum  received  of  its  pres- 
ident, net  prices  as  per  same,  without 
any  charges  of  commissions,  freight, 
or  any  other  charges.  We  agree  to 
keep  amount  of  consignment  at  all 
times  until  agreement  expires  fully 
insured,  and  that  no  part  of  consign- 
ment shall  remain  unsold  or  unpaid 
by  February  1,  1895;  and  we  shall 
also  be  entitled  on  any  cash  payment 
before  February  1,  1895,  to  one  and 
one-half  (14)  per  cent,  a  month  for 
unexpired  time.'  In  a  contest  be- 
tween Benedict  Company  and  par- 
ties claiming  consigned  clothing 
under  bill  of  sale  given  in  payment 
of  debt  due  from  commission  com- 
pany, it  was  held:  'The  contract  be- 
tween  the  Benedict  Company  and 


52 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM   SALES. 


[§  49. 


when  and  on  what  time  they  chose;  but  no  matter  how  sales 
were  made,  the  amount  to  be  paid  was  fixed  in  advance, 
whether  sold  or  not,  whether  collected  or  not.     Xo  account  of 


the  Stern  Auction  &  Commission 
Company  was  not  a  sale,  but  a  con- 
tract of  factorage.  The  stipulations 
of  the  contract  are  not  appropriate 
to  a  contract  of  sale.  If  it  was  a  sale, 
and  the  commission  company  ac- 
quired an  absolute  title,  what  con- 
cern was  it  of  the  Benedict  Company 
when  they  were  sold?  When  one 
merchant  sells  goods  to  another,  the 
seller  never  requires  the  buyer  to 
enter  into  a  covenant  that  he  will 
sell  the  goods  within  a  specified  time. 
Such  a  requirement  is  inconsistent 
with  the  dominion  over  the  property 
which  absolute  ownership  confers. 
The  money  to  be  paid  by  the  com- 
mission company  was  not  upon  a  sale 
of  the  goods  to  that  company,  but 
upon  a  sale  of  the  goods  by  that  com- 
pany. .  .  .  The  commission  com- 
pany covenanted  that  no  part  of  the 
consignment  should  •  remain  unsold 
or  unpaid  by  February  1,  1895.'  A 
failure  to  sell  the  goods  and  account 
for  the  same  at  the  prices  fixed  within 
the  time  agreed  upon  would  be  a 
breach  of  this  covenant  on  the  part 
of  the  commission  company,  for 
which  the  Benedict  Company  might 
recover  damages:  but  such  breach 
of  the  contract  would  not  have  the 
legal  effect  to  convert  the  bailment 
into  a  sale.  .  .  .  The  goods  not 
sold  would  still  remain  the  property 
of  the  Benedict  Company.  There  is 
no  provision  in  the  contract  for  a 
change  of  title  from  the  consignor 
to  the  consignee  in  any  event.  Tested 
by  the  written  agreement,  the  con- 
tract was  clearly  one  of  bailment." 
In  this  case,  while  the  goods  were  in 
store,  the  company  failed,  and  sold 


to  the  bank  all  its  stock,  expressly 
excepting  the  goods  on  hand  on  con- 
signment. The  president  of  the  bank 
was  notified  that  the  Benedict  goods 
would  not  be  included  in  the  sale, 
and  a  special  clause  in  the  bill  of  sale 
was  inserted  for  the  -purpose  of  ex- 
cluding them.  The  bank,  however, 
claimed  the  goods,  and  Benedict  & 
Co.  sued  for  them.  The  court  said 
the  parties  had  a  right  to  put  their 
own  construction  on  the  contract, 
and  when  it  was  done  in  good  faith 
the  court  would  sustain  the  construc- 
tion. It  is  well  to  note  that  the  com- 
.mission  company  were  not  to  pay  for 
the  goods  as  on  a  purchase,  but  only 
to  account  for  the  proceeds  of  sale  at 
prices  fixed  by  the  contract.  There 
was  no  stipulation  to  pay  for  the  goods 
at  a  fixed  time,  whether  they  were 
sold  or  not.  In  the  case  at  bar  the 
goods  were  to  be  paid  for  in  sixty 
days,  whether  sold  or  not.  It  is  not 
here  claimed  to  be  a  matter  for  dam- 
ages if  sale  is  not  made,  but  that  it 
is  an  absolute  engagement  to  pay, 
sale  or  no  sale.  In  addition,  the  com- 
mission company  expressly  excepted 
the  goods  in  controversy  out  of  the 
transfer,  while  in  the  case  at  bar  the 
accounts  in  controversy  are  expressly 
conveyed  to  the  assignee. 

"  Burton  v.  Goodspeed,  69  I1L  237. 
Burton  and  Holbrook  entered  into  a 
contract  substantially  as  follows: 
Burton  agreed  to  furnish  Holbrook, 
afloat  at  his  dock,  anthracite  coal. 
Holbrook  agreed  to  receive,  hoist 
from  vessel,  put  it  on  dock,  pay  lake 
freight,  and  charge  amount  paid  for 
all  this  against  coal,  and  to  receive 
for  docking,  screening,  selling,  and 


§^-J 


LAW    OF   SALE. 


[BOOK    I. 


sales  was  to  be  rendered.  Arbuckle  &  Co.  had  nothing  to  do 
with  Kirkpatrick  &  Co.'s  customers.  They  were  not  in  privity 
with  complainants,  and  no  credit  was  given  to  them.    «If  cash 


delivering,  including  his  commis- 
sions, $1.50  per  ton  fox-  coal  delivered 
outside  the  yard,  and  $1  for  that  de- 
livered on  the  yard,  and  an  addi- 
tional commission  of  fifty  per  cent, 
of  net  profits  on  sales.  Holbrook  also 
agreed  to  guaranty  payment  of  sales, 
to  advance  Burton  on  coal  as  shipped 
$3  per  ton,  and  pay  over  balance  of 
proceeds  of  sales  as  coal  was  sold; 
not  to  sell  below  market  price;  to 
keep  correct  accounts,  and  to  render 
statement  each  month.  The  court 
said:  'The  relation  existing  between 
appellant,  Burton,  and  Holbrook,  by 
virtue  of  their  contract,  is  neither 
that  of  vendor  and  vendee  nor  of 
partners.  .  .  .  There  is  nothing 
said  about  selling  the  coal,  or  any  in- 
terest in  it,  to  Holbrook,  nor  have  we 
been  able  to  find  any  language  from 
which  we  can  reasonably  presume 
that  the  intention  of  the  parties  was 
to  invest  him  with  the  ownership  of 
the  property.  The  fact  that  he  was 
to  receive  a  portion  of  the  net  profits 
on  sales  does  not  prove  that  he  was  a 
partner,  as  they  were  given  merely 
as  part  of  his  compensation.  We 
think,  under  the  evidence,  Holbrook 
was,  as  to  the  coals  shipped  him  for 
sale  by  appellant,  Burton,  a  factor  or 
commission  merchant.'  It  is  evident 
that  this  is  an  ordinary  consignment 
contract.  The  agent  was  to  render 
a  correct  account  each  month  to  his 
principal,  showing  amount  of  goods 
Bold  and  prices,  and  did  not  have  to 
pay  for  any  goods  until  sold,  and  was 
only  to  guaranty  such  sales  as  he 
made;  and  the  facts  do  not  make  it 
a  contract  similar  to  the  one  now 
under  consideration. 


"Norton  v.  Melick,  97  Iowa.  564 
(1896),  66  N.  W.  R.  780.  N.  &  Co. 
agreed  to  furnish  M.  certain  brands 
of  flour  at  specified  prices,  to  be  sold 
by  M.  for  them  as  their  agent  at 
prices  given.  M.  agreed  to  receive 
flour  as  agent  of  N.  &  Co.,  to  pay 
freight  and  charges,  to  keep  same  in 
good  order,  to  sell  it  at  not  less  than 
given  prices,  to  render  account  each 
thirty  clays,  and  make  remittances 
then  of  the  money  for  all  merchan- 
dise sold.  M.  further  agreed  to  buy 
any  of  the  flour  unsold  at  the  end  of 
ninety  days  at  prices  given,  and  pay 
therefor;  and  it  was  also  agreed  that 
title,  ownership,  and  right  of  posses- 
sion of  the  flour  should  remain  in 
N.  &  Co.  until  same  should  be  paid 
for  in  full.  The  court  said:  'We 
think  there  ought  to  be  no  question 
that  the  contract  was  a  mere  agency 
for  the  sale  of  the  flour.  It  is  ex- 
pressly stated  in  the  first  paragraph 
that  the  flour  was  to  be  sold  by  the 
defendant  for  the  plaintiffs  as  their 
agent.  The  real  inquiry  is,  What  was 
the  intention  of  the  parties  to  the 
contract?  That  intention  must  pre- 
vail; and  when  it  is  plainly  and  un- 
equivocally expressed  in  writing  that 
it  is  an  agency  and  not  a  sale,  and 
the  title  does  not  pass,  there  is  no 
room  for  construction,'  etc.  This  con- 
tract plainly  provided  that  the  agent 
should  render  an  account  each 
month,  and  make  remittances  for 
all  merchandise  sold.  The  title  to 
the  flour  was  to  remain  in  the  prin- 
cipal until  sold,  and  the  agent  stipu- 
lated to  buy  such  as  might  be  unsold 
at  the  expiration  of  ninety  days.  The 
flour  was  destroyed  by  fire  before  the 


54 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM    SALES. 


L§49. 


was  taken,  it  was  not  to  be  kept  separate.  If  notes  were  taken, 
Arbuckle  &  Co.  bad  no  concern  in  tbera.  Kirkpatrick  &  Co. 
were  to  bave  all  advance  in  prices'  and  bear  all  declines.     If 


ninety  days,  and  the  principal  sued 
the  agent  for  its  value.    The  court 
held  he  was  not  liable;  that  the  con- 
tract was  one  of  agency.     There  was 
no  stipulation  to  guaranty  the  prin- 
cipal against  decline  in  prices,  nor  to 
pay  in  a  fixed  time  for  each  lot  of 
goods,  whether  sold  or  not;  but  sim- 
ply to  buy  at  the  end  of  ninety  days. 
•Walker  v.  Butterick,  105    Mass. 
237.    There  was  a  contract  between 
parties  as  follows:  '  Alexander  &  Co. 
are  to  take  goods  from  Walker  & 
Co..  and  to  return  to  them  every 
thirty  days  the  amount  of  sales  at 
prices    charged  by  Walker  &   Co., 
avIio  will  furnish  Alexander  &  Co. 
all  goods  in  their  line.    Alexander  & 
Co.   are  worth  in  real  estate    and 
money  $5,000.'  After  receiving  goods, 
Alexander  &  Co.  made  monthly  re- 
mittances, stating,  in  substance,  that, 
according  to  contract,  they  remitted 
sales  for  preceding  thirty  days.    The 
goods  were  attached  by  creditors  of 
Alexander  &  Co.     Held,  the  terms 
of  contract  import  a  consignment, 
and  not  a  sale.     This  is  a   simple 
agency  contract,  and  has  none  of  the 
peculiar    features    of  the    contract 
now  under  consideration. 

"National  Cordage  Co.  v.  Sims 
(1895),  44  Neb.  148,  62  N.  W.  R.  514. 
"Where  a  contract  provides  for  con- 
signment of  goods  to  be  sold  on  com- 
mission for  prices  fixed  by  consignor, 
and  returns  at  stated  periods,  con- 
signee guarantying  payment  thereof, 
the  relation  which  the  law  implies 
is  that  of  an  agency  for  sale  upon  a 
del  credere  commission,  and  not  that 
of  vendor  and  vendee.  In  this  case 
the  contract  provided  that  the  twine, 


as  well  as  the  proceeds  of  its  sale, 
should  remain  the  property  of  the 
principal,  the  proceeds  to  be  remit- 
ted on  the  first  day  of  each  month. 
There  was  no  obligation  on  the  agent 
to  buy  any  of  the  twine,  or  to  sell  it 
in  any  fixed  time,  and  it  is  a  case  of 
simple  agency. 

"Sturm  v.  Boker,  150  U.  S.  312,  14 
Sup.  Ct.  99,  37  L.  ed.  1093.  The  goods 
were  consigned  to  the  agent  to  be 
sold  by  him  to  the  best  advantage, 
the  profits  realized  to  be  divided 
equally  between  the  principal  and 
agent,  and  all  losses  to  be  borne  by 
the  principal.  All  goods  unsold  were 
to  be  returned  to  the  principal.  The 
agent  was  to  insure  the  goods  for  the 
benefit  of  the  principal,  and  to  pay 
the  freight.  Held,  that  the  contract 
was  a  bailment  upon  the  terms 
stated.  The  contract  contained  none 
of  the  features  of  the  Arbuckle  con- 
tract. 

"  Lenz  v.  Harrison  (1893),  148  111. 
598,  36  N.  E.  R.  567.  The  contract 
provided  that  the  first  party  ap- 
pointed second  party  his  agent  to 
sell  wagons  in  Henry,  111.  The  sec- 
ond party  accepted  the  appointment, 
and  agreed  to  pay  all  freight  charges, 
taxes,  make  good  any  loss  or  damage 
by  fire,  house  them,  to  sell  only  to 
persons  of  undoubted  solvency,  in- 
dorse all  notes  taken  on  sales,  guar- 
antying prompt  payment  when  due, 
make  sales  requiring  final  payment 
within  twelve  months  from  date  of 
invoice,  to  transmit  to  first  party 
each  day  all  cash  received  from  sales 
that  day,  and  on  the  last  day  of  each 
month  render  full  account  of  all 
sales,  and  transmit  same,  with  all 
55 


§49.] 


LAW    OF    SALE. 


[BOOK   I. 


the  goods  were  destroyed  by  fire,  wind  or  water,  it  was  the 
loss  of  Kirkpatrick,&  Co.,  and  the  insurance  was  optional,  and 
only  designed  to  place  them  in  position  to  account  for  the 


notes  taken,  to  first  party.  Also,  if 
required  by  first  party,  will  take  all 
wagons  unsold  at  end  of  year,  and 
give  note  for  thern ;  but  this  stipula- 
tion not  to  be  a  positive  sale  to  sec- 
ond party  unless  this  requirement  is 
made  by  first  party.  Held  to  be  a 
simple  consignment. 

"Balderston  v.  Rubber  Co.  (1893), 
18  R.  L  338,  27  Atl.  R.  507,  49  Am.  St. 
R.  772.  The  R.  Co.  agreed  to  consign 
and  deliver  free  goods  to  B.  &  D.  for 
sale  and  returns,  to  pay  B.  &  D.  five 
per  cent,  on  net  amount  of  sales  as  a 
commission  and  guaranty,  and  also 
interest  on  any  sum  which  they 
(R  Co.)  might  owe  them.  B.  &  D. 
agreed  to  receive  goods  on  consign- 
ment, to  use  best  efforts  to  sell  to 
best  advantage,  to  account  to  R.  Co. 
for  same  at  price  obtained,  to  charge 
as  commissions  and  guaranty  five 
per  cent.,  and  to  advise  as  to  goods 
needed.  B.  &  D.  also  agreed  to  ad- 
vance to  R.  Co.  at  least  §50,000  per 
month  upon  basis  of  eighty  per  cent, 
market  value  of  goods  at  rate  of 
interest  specified.  The  prices  for 
which  B.  &  D.  were  to  sell  were  to 
be  fixed  by  R.  Co.  The  court  held: 
'  This  was  an  agreement  to  sell  goods 
for  R.  Co.  under  a  del  credere  com- 
mission, the  relation  between  parties 
being  that  of  principal  and  factor. 
A  factor  who  has  made  advances 
must  first  enforce  his  lien  therefor 
against  goods  before  looking  to  con- 
signor. And,  finally,  a  factor  under  a 
del  credere  commission  is  liable  abso- 
lutely as  a  principal,  and  becomes  a 
debtor  to  his  consignor  if  the  debt  is 
not  paid  by  purchaser  when  due;  but 
the  principal,  notwithstanding  liabil- 


ity of  factor  to  him,  may  collect  of  his 
purchaser.'  In  this  case  it  is  to  be 
noted  that  the  rubber  company  was 
to  pay  all  freights  to  Balderstons 
warehouse.  Balderston  was  to  use 
his  best  exertion  to  sell  to  the  best 
advantage,  and  to  account  at  the 
price  received,  less  five  per  cent. 
There  was  no  stipulation  for  a  guar- 
anty against  decline  in  price,  nor  loss 
by  fire,  or  other  causes,  nor  is  there  any 
guaranty  to  sell,  or  to  pay  until  he 
did  sell.  The  contract  lacks  many  of 
the  features  of  the  present  one. 

"  Barnes  Safe  &  Lock  Co.  v.  Bloch 
Bros.  Tobacco  Co.,  38  W.  Va.  158,  22 
L.  R.  A.  850,  45  Am.  St.  R.  846,  18  S. 
E.  R  482.  The  contract  stipulated 
that  the  safe  and  lock  company  ap- 
pointed the  Globe  Contract  Company 
its  agent  to  sell  safes  in  certain  terri- 
tory on  fixed  commissions,  and  agreed 
to  furnish  the  agent  safes  on  con- 
signment. The  agent  was  to  pay  for 
safes  when  it  sold  them,  and  to  dili- 
gently work  the  territory.  The  agent 
failed,  and  its  creditors  levied  on 
some  of  the  safes  in  its  charge,  un- 
sold. The  court  held  that  the  safes 
were  not  the  property  of  the  agent. 
The  contract  contained  none  of  the 
peculiar  features  of  the  Arbuckle 
contract. 

"National  Bank  v.  Goodyear,  90 
Ga.  711,  16  S.  E.  R.  962.  The  contract 
contained  stipulations  that  the  agent 
should  receive  goods  on  consignment, 
to  be  sold  by  him  as  the  agent  of  the 
consignor.  The  agent  was  to  make 
monthly  reports  of  sales  of  goods  on 
hand;  the  title  to  all  unsold  goods 
and  all  proceeds  of  sales  to  remain  in 
the  consignor;  all  articles  to  be  set- 
56 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FK05I    SALES. 


C§  -io. 


goods.  "Whether  the  goods  were  carted,  or  stored  or  insured, 
was  optional  with  Kirkpatrick  &  Co.,  but,  in  any  event,  they 
were  to  be  credited  therefor.     Thev  were  allowed  a  sum  for 


tied  for  as  soon  as  sold.  The  agent 
also  agreed  to  insure,  store,  pay 
freight  and  all  charges  without  ex- 
pense to  consignor,  and  have  for  his 
pay  whatever  the  goods  sold  for 
above  the  invoice  prica  The  con- 
signor could  terminate  "the  agency 
at  his  option,  and  retake  all  goods  on 
hand.  This  was  held  a  bailment,  and 
not  a  sale. 

"Milburn  Manufacturing  Co.  v. 
Peak  (1896),  89  Tex.  209,  34  S.  W.  R. 
102.  The  contract  provided  that  the 
Milburn  Company  appointed  Hood  & 
Co.  its  agent  to  sell  vehicles.  Hood 
&  Co.  were  to  make  all  reasonable 
efforts  to  sell  same,  and  settle  for  all 
vehicles  sold,  take  all  notes  for  goods 
sold  on  credit  in  the  name  of  the 
Milburn  Company,  and  remit  to  it 
all  notes  and  cash  received  for  the 
vehicles;  the  notes  taken  for  the 
vehicles  to  be  indorsed  and  guar- 
antied by  Hood  &  Co.,  and  paid  if 
the  makers  did  not  pay  at  maturity; 
the  ownership  of  all  vehicles  and 
their  proceeds  of  sales  to  remain  in 
Milburn  Company,  and  under  no  cir- 
cumstances to  be  used  by  the  agent. 
The  contract  is  plainly  very  different 
from  the  Arbuckle  contract. 

"  Moline  Plow  Co.  v.  Rodgers,  53 
Kan.  743,  42  Am.  St.  R.  317,  37  Pac. 
R  111.  The  contract  provides  that 
Underwood  was  appointed  agent  of 
Moline  Plow  Company,  who  agreed 
to  consign  him  certain  goods.  The 
agent  was  to  settle  for  all  goods  re- 
ceived by  him  with  farmers'  notes 
taken  for  such  goods  as  he  should 
sell.  The  goods  remaining  unsold 
at  the  end  of  the  season  the  agent 
should  either  settle  for  with  farmers' 

5^ 


notes,  or  store  for  the  principal,  at 
the  principal's  option.  A  few  months 
later  the  agent  absconded.  The  prin- 
cipal, after  investigation,  attached 
the  goods  on  hand  as  the  goods  of  the 
agent.  Held,  that  he  thereby  elected 
to  treat  the  goods  as  the  agent's,  and 
was  bound  by  his  election. 

"  Defendants  cite  cases  supporting 
their  contentions,  and  these  we  have 
examined  and  comment  upon. 

"^Etna  Powder  Co.  v.  Hildebrand, 
137  Ind.  402,  45  Am.  St,  R.  194,  37 
N.  E.  R  136.  The  P.  Co.  agreed  to 
consign  powder,  paying  freight,  to 
H.  &  F.,  to  sell  as  agents  at  prices 
not  below  those  fixed  by  P  Co.,  and 
to  allow  H.  &  F.  for  selling  and  guar- 
antying sales  a  given  per  cent.  H. 
&  F.  agreed  to  act  as  agents,  to  guar- 
anty sales,  to  adhere  to  prices,  to 
make  no  charge  except  commissions 
stated,  to  make  report  of  all  sales  at 
end  of  each  sixty  days,  and  to  pay  for 
same  with  their  sixty-day  note.  Court 
and  counsel  for  all  parties  agreed 
that  this  contract  created  H.  &  F. 
agents  until  a  sale  took  place.  Then, 
the  court  held,  H.  &  F.  became  or- 
dinary debtors  of  the  consignors  for 
the  amount  due  them  for  goods  at 
catalogue  price.  This  case  cites  the 
following  as  authorities  sustaining  a 
similar  holding:  Nutter  v.  Wheeler, 
Fed.  Cas.  No.  10,384;  Ex  parte  White 
(1871),  L.  R.  6  Ch.  App.  397;  In  re 
Linforth,  Fed.  Cas.  No.  8,369. 

"Ex  parte  White  (1871),  L.  R  6  Ch. 
App.  397.  There  was  no  written 
agreement  between  parties.  The 
court  found  the  course  of  dealing 
was  substantially  this:  N.  was  to  dis- 
pose of  goods  sent  him  by  T.  &  Co., 


§49.] 


LAW    OF    SALE. 


[book 


commissions,  whether  they  sold  or  not,  and  discount  was  to  be 
allowed  for  quick  payment,  as  is  usual  in  case  of  sales.  The 
course  of  dealing  shows  that  the  proceeds  of  sale  were  not  to 


and  was  not  to  pay  for  them  unless 
he  disposed  of  them.  He  was  to  re- 
turn at  end  of  every  month  an  ac- 
count of  sales  actually  made,  and 
then,  after  lapse  of  another  month, 
was  to  pay  in  cash  for  amount  of 
goods  which  he  so  disposed  of  accord- 
ing to  values  fixed  by  price  list  sent 
him.  It  does  not  appear  that  he  ever 
was  expected  to  return  any  particu- 
lar contract,  or  names  of  customers. 
He  pursued  his  own  course  in  deal- 
ing with  goods,  and  frequently  be- 
fore sale  manipulated  them  to  a  very 
considerable  extent  by  pressing,  dye- 
ing, and  otherwise  altering  their 
character,  changing  them  as  much 
as  wheat  would  be  changed  by  being 
turned  into  flour;  and  he  sold  them 
on  what  terms  he  pleased  as  to  price 
and  credit.  T.  &  Co.  undertook  to 
impose  a  trust  on  certain  funds  al- 
leged to  have  been  collected  by  N. 
upon  sales  of  their  goods.  The  court 
held:  '  The  course  of  dealing  between 
parties  wa,s  inconsistent  with  the 
idea  that  N.  was  dealing  in  a  fiduci- 
ary character  in  respect  to  these 
goods,  or  that  the  relation  of  vendor 
and  purchaser  existed  between  T.  & 
Co.  and  parties  to  whom  N.  sold.  The 
pi'oceeds  of  sale  were  the  moneys  of 
N.  Mellish,  L.  J.,  said:  'It  appears 
to  me  tnat  the  real  question  is: 
When  N.  sold  the  goods,  did  he  sell 
them  as  the  agent  of  T.  &  Co.,  so  as 
to  make  T.  &  Co.  the  vendors,  and 
the  persons  to  whom  he  sold  purchas- 
ers from  T.  &  Co.,  or  did  he  sell  on 
his  own  account,  so  as  to  create  the 
relation  of  purchaser  and  vendor  be- 
tween himself  and  the  persons  to 
whom  he  sold  ?    Now,  it  is  said  that 


he  was  a  del  credere  agent;  and  no 
doubt  it  requires  a  very  minute  ex- 
amination of  the  course  of  business 
to  distinguish  between  a  del  credere 
agent  and  a  person  who  is  an  agent 
up  to  a  certain  point, —  that  is  to  say, 
until  he  has  sold  the  goods, —  but 
who,  when  he  has  sold  the  goods,  has 
purchased  them  on  his  own  credit, 
and  sold  them  again  on  his  own  ac- 
count. .  4  .  Now,  if  it  had  been 
his  (N.'s)  duty  to  sell  to  his  custom- 
ers at  that  price  (the  price  fixed  by 
T.  &  Co.),  and  to  receive  payment  for 
them  at  that  time,  then  the  course 
of  dealing  would  be  consistent  with 
his  being  merely  a  del  credere  agent. 
But  if  the  consignee  is  at  liberty  to 
sell  at  any  price  he  likes,  but  is  to  be 
bound  if  he  sells  the  goods  to  pay 
the  consignor  for  them  at  a  fixed 
price  and  time,  in  my  opinion,  what- 
ever the  parties  may  think,  their  re- 
lation is  not  that  of  principal  and 
agent.'  The  alleged  agent  in  such  a 
case  (as  this)  is  making  on  his  own 
account  a  contract  of  purchase  with 
his  alleged  principal,  and  is  again 
reselling. 

"  Nutter  v.  Wheeler  (Dist.  Ct.  Mass., 
1874),  2  Low.  346,  Fed.  Cas.  No. 
10,384.  W.  &  Co.,  manufacturers  of 
tools,  were  in  the  habit  of  sending 
their  goods  to  G.,  at  his  shop  in  B., 
who  sold  them  at  such  prices,  to 
such  persons,  on  such  terms  as  he 
pleased.  Whenever  G.  sold  tools,  he 
was  to  pay  W.  in  thirty  days  prices 
shown  by  list,  less  agreed  discount. 
W.  had  the  right  at  any  time  to  sell 
goods  remaining  in  G.'s  shop  unsold, 
and  G.  was  permitted  to  sell  goods 
at  factory  of  W.,  who  then  delivered 


5b 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM    SALES. 


[§  49. 


be  kept  separate,  but  Kirkpatrick  &  Co.  remitted  their  check 
on  general  account,  and  it  was  accepted  without  question  or 
comment.     This  was  a  virtual  agreement  that  Kirkpatrick  & 

them,  and  charged  G.  the  trade  price, 
less  agreed  discount.  Instead  of 
paying  in  thirty  days,  G.  sometimes 
gave  his  note  for  balance  due,  one  of 
which  W.  held  at  time  of  G.'s  bank- 
ruptcy. G.  ordered  three  drills  to 
be  sent  by  W.  to  a  customer.  They 
were  sent,  and  bill  made  out  to  G.  as 
purchaser  for  trade  price,  less  dis- 
count, and  sent  him  in  a  letter,  in 
which  W.  &  Co.  said  they  had  taken 
off  fifteen  per  cent.,  and  hoped  to 
get  cash  in  thirty  days.  G.  went 
into  bankruptcy.  The  purchasers 
had  not  paid  for  drills,  and  W.  &  Co. 
collected  price  therefor.  G.'s  as- 
signee brought  this  suit  against  them 
for  money  had  and  received.  Lowell, 
J.,  said,  among  other  things:  'It  has 
been  settled  for  a  long  time  that 
upon  the  bankruptcy  of  a  factor  his 
principal  may  recover  from  the  as- 
signees any  of  the  goods  remaining 
unsold,  or  any  proceeds  of  the  sale  of 
such  goods  which  the  assignees 
themselves  have  received,  or  which 
remain  specially  distinguishable 
from  the  mass  of  the  bankrupt's 
property;  .  .  .  and  it  makes  no 
difference  that  the  factor  acted 
under  a  del  credere  commission  or 
sold  the  goods  in  his  own  name.  As 
to  those  goods  sent  to  Boston,  he 
(G.)  may  be  described  as  a  bailee, 
having  power  to  sell  as  principal. 
But  after  the  goods  were  sold,  the 
agreement  appears  to  have  been  that 
G.'s  credit  alone  was  looked  to.'  Re- 
lying upon  the  authority  of  Ex  parte 
White,  6  Ch.  App.  397,  the  court 
finally  said:  'If  the  relation  of  the 
parties  was  such  as  I  have  consid- 
ered it,  then,  even  as  to  the  goods 


which  had  been  once  consigned  to 
G.,  he  should  be  considered  as  the 
purchaser,  subject  only  to  the  under- 
standing that  he  was  neither  the 
owner  of  them  nor  liable  to  pay  for 
them  until  he  had  succeeded  in  find- 
ing a  purchaser;  but  when  he  did 
sell  he  immediately  became  the  prin- 
cipal, and  the  defendants  ceased  to 
have  the  rights  of  a  consignor,  and 
could  not  follow  the  goods  or  their 
proceeds  as  undisclosed  principals." 
"Ex  parte  Flannagans  (Dist.  Ct. 
Va.,  1875),  2  Hughes,  264,  12  N.  B.  R. 
230,  Fed.  Cas.  No.  4,855.  F.  &  Son, 
manufacturers,  and  R.  &  H.,  com- 
mission merchants,  in  1873  agreed  as 
follows:  'We,  F.  &  Son,  propose  to 
give  you  entire  agency  for  Stone- 
wall fertilizer  at  Norfolk,  and  for 
.  .  .,  on  condition  you  push  sale, 
and  have  proper  man  to  look  after 
it,  and  to  allow  you  a  commission  of 
ten  per  cent,  for  sales  and  guaranty, 
we  to  draw  on  you  at  sight  or  short 
time  for  $30  a  ton.  The  price  to  be 
sold  at  is  §65  in  Baltimore.  For  bal- 
ance, after  paying  §30,  you  to  give 
your  acceptances,  say,  payable  first 
December,  1873;  accounts  to  be  ren- 
dered and  settlement  after  selling 
season  is  over;  no  charge  to  be  made 
for  storage  during  the  season.  Any 
guano  left  over  and  not  sold  is  to  be 
at  the  risk  and  on  our  account.  We 
agree  to  f  ui'nish  the  guano  delivered 
in  Baltimore,  one  hundred  tons  to 
be  delivered  in  .  .  .,  and  balance 
as  ordered.  .  .  .  Will  ship  in  lots 
to  any  point  you  may  direct.'  R.  & 
H.  accepted  the  above.  The  court 
held  that  under  authority  of  Ex 
parte  White  (1871),  L.  R.  6  Ch.  App. 


59 


§49.] 


LAW    OF    SALE. 


[book 


Co.  might  use  the  proceeds  as  they  chose,  and  account  for 
them  out  of  their  general  funds.  These  features  are  all  evi- 
dences of  a  sale,  and  cover  every  risk,  obligation  and  duty  that 
rests  upon  a  purchaser,  and  cover  every  right  in  handling  the 


397,  and  section  215,  Story,  Ag.,  con- 
signments under  above  contract 
were  sales,  and  not  shipments  under 
a  del  credere  guaranty.  The  judge 
held  R.  &  H.  were  primarily  liable 
to  F.  &  Son  for  a  fixed  price  on  their 
acceptances,  and  that  they  might 
sell  to  planters  at  a  different  price, 
and  then  stated  that  '  the  now  well- 
settled  law  of  del  credere  guaranty  is 
that  the  factor  is  not  the  primary 
debtor;  that  his  engagement  is 
merely  to  pay  the  debt  if  it  is  not 
punctually  paid  by  the  person  to 
whom  he  sells,  —  citing  Story,  Ag., 
§  215, —  and  held  that  therefore  R.  & 
H.  were  not  factors,  but  purchasers. 
"In  re  Linforth  (Cir.  Ct.  CaL,  1877), 
4  Sawy.  370,  Fed.  Cas.  No.  8,369.  June 
1,  1876,  F.  agreed  to  furnish  L.  such 
manufactured  goods  as  he  should 
order,  to  allow  L.  certain  specified 
discounts  from  price  lists,  and  to  give 
L.  exclusive  sale  of  such  goods.  L. 
agi*eed  to  pay  freight  charges,  etc., 
on  goods  shipped,  to  insure  at  his 
own  cost  for  benefit  of  F,  to  render 
account  of  sales  every  three  months, 
and  to  settle  for  all  goods  sold  or 
shipped  from  his  (L.'s)  warehouse  by 
giving  his  note,  payable  in  sixty  days 
from  date  fixed  for  rendering  ac- 
count of  sales  as  provided.  L.  fur- 
ther agreed  to  settle  for  such  goods 
as  might  be  on  hand  June  1,  1877,  by 
giving  notes,  payable  in  six  months, 
if  so  required  by  F.  F.  agreed  to  al- 
low additional  discount  for  all  cash 
paid  in  advance  of  times  specified. 
The  court  held  that  transactions 
under  this  contract  were  sales  on  a 


credit;  citing  Nutter  v.  Wheeler  and 
Ex  parte  White,  supra. 

"Gindre  v.  Kean  (1894),  31  Abb. 
N.  C.  100,  7  Misc.  R.  582,  28  N.  Y. 
Supp.  7.  The  suit  arose  out  of  an 
effort  by  principals  to  recover  of 
the  assignee  in  insolvency  of  their 
del  credere  agent  the  amounts  due 
for  goods  furnished  him  and  which 
he  had  sold.  The  principle  is  tersely 
stated  by  Bischoff,  J.,  at  page  7,  as 
follows:  'The  principles  which  should 
control  the  decision  of  the  case  at 
bar,  and  which  are  to  be  deduced 
from  the  adjudged  cases,  are  that 
whenever  the  agreement  of  the  al- 
leged principal  and  factor,  whatever 
they  may  style  themselves  or  their 
relation,  and  whether  the  agreement 
be  expi'ess  or  only  inferable  from  the 
course  of  business,  clearly  manifests 
an  intention  that  the  alleged  factor 
shall  become  definitely  and  prima- 
rily liable  upon  a  sale  for  the  pur- 
chase price  of  the  goods  consigned, 
it  is,  in  legal  effect,  a  sale  by  the  al- 
leged principal  to  the  alleged  factor, 
out  of  which  arises  the  ordinary  re- 
lation of  debtor  and  creditor.  The 
liability  of  the  alleged  factor,  under 
such  an  agreement,  is  repugnant  to 
that  of  a  mere  agent,  whose  duty  to 
remit  is  commensurate  only  with  the 
amount  of  the  money  which  he  has 
actually  received  upon  a  sale  for 
his  principal's  account.'  The  court 
cites  the  case  of  Linforth.  Nutter  v. 
Wheeler,  and  Ex  parte  White  with 
approval." 

In  Arbuckle  Bros.  v.  Gates  (1898), 
95  Va.  802,  30  S.  E.  R.  496,  the  same 


60 


CH.  II.] 


TRANSACTIONS    DISTINGUISHED    FROM    SALES. 


[§49. 


goods  that  an  owner  could  have,  except,  simply,  the  price  was 
to  be  sustained.  This  was  evidently  provided  in  order  to  keep 
the  price  uniform  in  all  markets  and  stifle  competition.  Kirk- 
patrick  &  Co.  could  sell  in  any  territory,  in  any  amount,  to 


contract  came  before  the  court,  in 
Virginia,  for  construction,  and  the 
same  conclusion  was  reached.  The 
court,  referring  to  certain  further 
cases,  said: 

"In  Williams  v.  Tobacco  Co.  (Tex. 
Civ.  App.)  44  S.  W.  R.  185,  an  agree- 
ment, which  was  very  similar  in  its 
essential  features  and  provisions  to 
that  under  consideration,  was  con- 
strued by  the  court  of  civil  appeals 
of  Texas.  The  agreement  purported 
that  the  Drummond  Tobacco  Com- 
pany appointed  A.  H.  Schluter  & 
Co.  as  agents  to  sell  its  tobacco  at 
such  prices  as  the  company  should 
from  time  to  time  prescribe,  and  that 
the  title  to  the  tobacco  should  re- 
main in  the  tobacco  company  until 
sold  by  the  said  agents.  The  latter 
were  to  receive  a  commission  for 
selling,  and,  in  consideration  thereof, 
warranted  that  every  shipment  made 
to  them  should  be  paid  in  full.  The 
company,  in  shipping  the  tobacco, 
invoiced  it  to  A.  H.  Schluter  &  Co. 
as  agents,  and  used  a  billhead  that 
designated  the  shipment  as  a  '  con- 
signment.' It  was  shown  that,  after 
the  shipment  of  each  bill  of  tobacco, 
the  company  would  draw  an  accept- 
ance of  the  same  date  as  the  invoice 
of  the  tobacco  for  the  amount  of  the 
bill,  less  the  commission,  payable 
sixty  days  after  date,  which  Schluter 
&  Co.  would  accept,  and  the  com- 
pany at  the  maturity  thereof  would 
present  for  payment,  and  Schluter  & 
Co.  would  pay,  whether  they  had  sold 
the  tobacco  or  not.  The  court  de- 
cided that  the  transaction  was  a  sale, 
and  did  not  create  an  agency. 


"  In  Mack  v.  Tobacco  Co.,  48  Neb. 
397,  58  Am.  St.  R  691,  67  N.  W.  R. 
174,  a  contract,  similar  in  its  terms 
to  the  one  construed  in  the  above- 
cited  case  from  the  Texas  court,  was 
held  by  the  supreme  court  of  Ne- 
braska to  be  a  sale,  and  not  an 
agency.    .    .    . 

"  Similar  contracts  were  construed 
in  the  following  cases  to  constitute 
a  sale,  and  not  an  agency:  In  re  Lin- 
forth,  4  Sawy.  370,  Fed.  Cas.  No.  8,369; 
Chickering  v.  Bastress,  130  111.  206,  17 
Am.  St.  R.  309,  22  N.  E.  R  542:  ^Etna 
Powder  Co.  v.  Hildebrand,  137  Ind. 
462,  37  N.  E.  R  136;  Aspinvvall  Man- 
ufacturing Co.  v.  Johnson,  97  Mich. 
531, 56  N.  W.  R.  932;  Braunn  v.  Keally, 
146  Pa.  St.  519,  23  AtL  R.  389,  2S  Am. 
St.  R.  811;  Kellam  v.  Brown,  112 
N.  C.  451, 17  S.  E.  R.  416.    .    .    . 

"In  Conable  v.  Lynch,  45  Iowa,  84, 
Berry  agreed  to  sell  machines  for 
Conable  to  such  persons  only  as  were  \ 
perfectly  responsible,  take  notes  for 
the  deferred  payments,  indorse  them 
and  guaranty  their  payment.  He  was 
to  send  to  Conable  the  notes  of  pur- 
chasers as  he  sold  the  machines,  and 
to  remit  promptly  the  proceeds  of  all 
cash  sales,  less  the  amount  of  his 
commissions.  All  the  machines, 
until  paid  for,  were  to  remain  the 
property  of  Conable,  and  at  the  ex- 
piration of  the  contract  Berry  was 
to  pay  for  all  machines  not  sold.  The 
court  held  that  the  effect  of  the  con- 
tract was  to  make  Berry  the  agent 
of  Conable  until  the  termination  of 
the  contract,  but  after  that  time  it 
was  a  conditional  sale. 

"  It  thus  appears  that,  until  the  ex- 


61 


§  so.] 


LAW    OF    SALE. 


[BOOK    I. 


any  purchaser,  on  any  terms,  for  cash  or  credit,  take  notes  or 
make  accounts,  and  dispose  of  the  goods  as  absolutely  and  free 
of  limitation  as  any  owner  could,  except  they  could  not  vary 
the  price." 

§  50. •-  How  question  determined — Law  or  fact. — Where 

the  contract  is  in  writing  or  the  facts  are  not  disputed,  the 
question  whether  the  writing  produced  or  the  facts  admitted 
operate  to  create  a  sale  or  an  agency  to  sell  is  one  of  law  to  be 
decided  by  the  court;  but  when  the  facts  are  controverted  it 
becomes  a  question  for  the  jury,  under  proper  instructions  from 


piration  of  the  contract,  the  relation 
of  creditor  and  debtor  did  not  arise. 
Until  then  Berry  sold  the  machines 
for  and  on  account  of  Conable,  and 
the  relation  between  them  was  that 
of  principal  and  agent,  bat  when  the 
contract  expired  by  limitation,  and 
Berry  came  under  the  obligation  to 
pay  for  all  unsold  machines,  the 
court  held  that  the  contract  made 
the  transaction  a  conditional  sale. 

"  In  Bayliss  v.  Davis,  47  Iowa,  340, 
Bayliss,  under  the  agreement  there 
construed,  appointed  one  Stinson  his 
agent  to  sell  harvesters,  and  agreed 
to  allow  him  a  commission  of  $40  on 
each  harvester.  Stinson  agreed  to 
advance  one-third  of  the  price,  and 
give  his  notes  for  the  residue,  and  to 
sell  on  the  same  terms.  All  notes 
taken  for  machines  sold  by  him  were 
to  be  made  payable  to  Bayliss,  the 
proceeds  of  sale  were  to  be  remitted 
by  him  to  Bayliss  as  fast  as  received, 
after  deducting  his  advances,  and  his 
own  notes  were  to  be  taken  up  by  ex- 
changing for  them  the  notes  of  farm- 
ers to  whom  he  had  sold  machines.  It 
was  said  by  the  court  that,  while  the 
advance  of  money  and  giving  notes 
would  ordinarily,  without  explana- 
tion, indicate  a  sale,  yet  when  consid- 
ered iu  connection  with  the  fact  that 

G: 


Berry  was  to  be  repaid  his  advances 
from  the  cash  payments  made  by 
farmers  to  whom  he  sold  machines, 
and  that  his  own  notes  were  to  be 
taken  up  and  paid  by  their  notes,  it 
was  not  inconsistent  with  the  agency 
which  was  set  out  in  other  parts  of 
the  contract." 

The  same  conclusion  was  also 
reached  on  the  same  conti-act  in 
Snelling  v.  Arbuckle  (1898),  104  Ga. 
362,  30  S.  E.  R.  863.  See  also  Howell 
v.  Boudar  (1898),  95  Va.  815,  30  S.  E. 
R.  1007.  The  question  is  also  very 
fully  discussed  in  Norwegian  Plow 
Co.  v.  Clark  (1897),  102  Iowa,  31.  70 
N.  W.  R.  808.  For  still  other  cases 
holding  particular  contracts  to  be 
contracts  of  sale  rather  than  of 
agency,  see  Alpha  Check-Rower  Co.  v. 
Bradley  (1898),  105  Iowa,  537,  75  N.  W. 
R.  369;  Armstrong  v.  St.  Paul,  etc. 
Co.  (1891).  48  Minn.  113,  49  N.  W.  R. 
233;  Granite  Roofing  Co.  v.  Casler 
(1890),  82  Mich.  466,  46  N.  W.  R.  728; 
Bradley  Mfg.  Co.  v.  Raynor  (1896),  70 
111.  App.  639;  Peoria  Mfg.  Co.  v.  Lyons 
(1894),  153  111.  427,  38  N.  E.  R.  661 ; 
Yoder  v.  Ha  worth  (1898),  57  Neb.  150, 
77  N.  W.  R.  377;  Hutton  v.  Lippert 
(1883),  8  App.  Cas.  309:  Whitman 
Agricultural  Co.  v.  Hornbrook  (1899), 
24  Ind.  App.  255,  55  N.  E.  R.  502. 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM    SALES. 


[§  50- 


the  court,  to  determine,  in  view  of  all  the  circumstances,  what 
the  contract  was,  and  what,  in  accordance  with  the  instructions, 
was  its  legal  effect.1 


1Thus  in  Rauber  v.  Sundback 
(1890),  1  S.  D.  268,  46  N.  W.  R  927, 
the  court  said:  "Upon  the  whole  it 
seems  to  us  very  plain  that  the  real 
intent  and  understanding  of  the  par- 
ties to  this  agreement  must  be  gath- 
ered from  a  variety  of  sources:  some 
affording  direct  and  definite  evi- 
dence; others  indirect,  indefinite  and 
possibly  inconsistent  and  confusing. 
It  must  be  determined  to  some  ex- 
tent, at  least,  from  statements  and 
expressions,  the  meaning  of  which 
seems  doubtful  and  obscure.  These 
expressions  must  be  analyzed  and 
compared,  not  only  with  each  other, 
but  with  other  statements  as  to  the 
agreement,  if  there  are  any,  which 
are  more  definite  and  certain.  By 
this  means  only  could  the  final  fact 
as  to  what  agreement  these  parties 
made  —  its  scope  and  meaning  —  be 
intelligently  determined.  This  being 
our  conclusion  as  to  the  condition  of 
the  evidence,  it  follows  that  in  our 
judgment  the  question  should  have 
been  submitted  to  the  jury,  with  a 
plain  instruction  from  the  court  as 
to  what  agreement  would  constitute 
the  transaction  a  bailment,  and  what 
a  sale.  Of  the  cases  cited  in  respond- 
ent's brief,  Fish  v.  Benedict,  74  X.  Y. 
613;  Bastress  v.  Chickering,  18  111. 
App.  198  [affirmed  130  111.  206, 17  Am. 
St,  R,  309];  and  Jenkins  v.  Eichel- 
berger,  4  Watts,  121,  28  Am.  Dec. 
691, — are  inapplicable  to  this  case,  so 
far  as  the  distinct  question  now  pre- 
sented is  concerned,  because  in  each 
of  those  cases  the  agreement  upon 
which  the  rights  of  the  parties  de- 
pended was  in  writing,  and  there  was 


and  could  be  no  doubt  or  question  as 
to  its  terms,  and  it  was  plainly  the 
duty  of  the  court  to  construe  it,  and 
declare  whether  it  constituted  the 
transaction  a  sale  or  a  bailment.  But 
here  the  very  matter  in  doubt  and 
dispute  is,  What  did  the  parties  agree 
to  ?  and  to  find  and  determine  what 
that  agreement  really  was,  its  terms 
and  extent,  was  a  question  of  fact  for 
the  jury,  on  all  the  evidence:  its  force 
and  legal  effect  a  matter  of  law  for 
the  com-t.  The  other  cases  cited  by 
respondent  were  where  grain  had 
been  deposited  with  a  warehouse- 
man, and  the  question  there,  as  here, 
was:  Was  it  a  sale  or  a  bailment? 
But  in  those  cases  the  undisputed 
testimony  showed,  and  it  was  not 
questioned,  but  conceded,  that  the 
agreement  never  contemplated  that 
the  specific  article  which  was  the 
subject  of  the  agreement  should  be 
retained  by  the  bailee,  or  purchaser, 
or  that  such  specific  grain  should  be 
returned  in  case  of  demand,  but  that 
other  grain  of  the  same  kind  and 
quality  might  be  returned  in  its  place. 
Thus  the  very  fact  which,  in  the 
opinion  of  the  court,  tested  and  de- 
termined the  character  of  the  trans- 
action, was  not  in  doubt  or  dispute. 
In  these  cases,  as  in  those  just  previ- 
ously noticed,  the  terms  of  the  agree- 
ment were  definite,  clear  and  unam- 
biguous, and  that  is  the  marked  and 
significant  distinction  between  those 
cases  and  the  one  at  bar.  We  think 
the  case,  with  proper  instructions 
from  the  court  as  to  what  constituted 
a  sale,  and  what  a  bailment,  should 
have  been  submitted  to  the  jury." 


63 


§51.] 


LAW   OF    SALE. 


[book 


For  this  purpose  a  full  disclosure  of  the  circumstances  is  ad- 
missible,1 and  in  ambiguous  cases  parol  evidence  may  be  re- 
sorted to  in  order  to  show  the  intention.2 

§  51.  Consignment  of  goods  in  payment  of  debt  or  to  cover 
prior  advances. —  Goods  may,  of  course,  be  delivered  in  pay- 
ment of  a  debt  due  from  the  consignor  to  the  consignee,  or  to 
cover  prior  advances  made  by  the  latter  to  the  former.    Where 


i  Simpson  v.  Pegram  (1891).  108 
N.  C.  407,  13  S.  E.  R.  7.  (The  state- 
ments upon  the  consignee's  printed 
letter-heads,  for  example.) 
.  2  Head  v.  Miller  (1891),  45  Minn. 
446,  48  N.  W.  R.  192.  In  this  case, 
after  some  oral  negotiations,  a  mem- 
orandum or  order  was  signed  by  one 
party  in  the  following  form: 

"Order  No.  ,  February  11th, 

1889. 

"  Send  to  J.  A.  Bixby  &  Co. 

"Place,  Minneapolis,  Minn. 

"  How  ship, . 

"Terms,  4  mos.  from  July  1st  list. 

"  13  No.  24  steel  furnaces  §100. 

"  12  No.  034    "  "        $125. 

"  2  No.  55  furnaces  with  dia. 

"2  No.  35        "  "       " 

— at  60  and  10  per  cent,  from  list  de- 
livered in  Minneapolis.  It  is  agreed 
that  Head's  Iron  Foundry  will  carry 
over  to  next  season  any  furnaces  not 
sold  on  January  1st,  1890. 

[Signed]    "  J.  A.  Bixby  &  Co." 

The  controversy  was  between  the 
foundry  company  and  a  receiver  of 
the  property  of  Bixby  &  Co.,  the 
former  seeking  to  recover  furnaces 
in  the  possession  of  the  latter,  not 
sold  by  Bixby  &  Co.  Said  the  court: 
"This  memorandum,  treated  as  an 
order,  is  not  directed  to  any  one,  and 
is  incomplete  in  itself;  that  is  to  say, 
it  must  be  construed  in  connection 
with  the  proposition  or  offer  of  the 


plaintiffs.  It  does  not  follow  that 
the  terms  of  the  agreement  actually 
expressed  in  the  memorandum  may 
be  contradicted  or  disputed  by  parol; 
but  the  memorandum  is  consistent 
with  a  consignment  of  the  goods,  as 
claimed  by  the  plaintiffs,  or  a  sale, 
as  insisted  on  by  the  defendant.  The 
prices  or  terms  specified  in  the  mem- 
orandum may  apply  to  either.  Pam 
v.  Vilmar,  54  How.  Pr.  235.  We  think 
the  evidence  sufficient  to  support 
the  finding  of  the  trial  court  that  the 
goods  were  taken  on  consignment, 
and  the  status  of  that  portion  thereof 
remaining  unsold  on  January  1,  1890, 
is  defined  in  the  memorandum ;  that 
is  to  say,  as  against  Bixby  and  the 
receiver,  the  property  in  question, 
when  this  suit  was  brought,  was, 
-by  the  mutual  understanding  of  the 
parties,  'carried'  by  Head's  Iron 
Foundry,  which  is  shown  to  be  the 
plaintiffs.  It  was  held  by  Bixby  & 
Co.  as  bailees,  at  the  risk  of  the 
plaintiffs.  For  this  Bixby  &  Co.  had 
taken  pains  to  stipulate,  and  it  is 
entirely  in  harmony  with  the  plaint- 
iff's alleged  claim  and  the  finding 
of  the  court  that  the  goods  were 
shipped  to  them  to  bo  sold  by  them 
for  the  plaintiffs,  and  what  they 
could  not  sell  by  January  1st  the 
plaintiffs  were  to  hold,  and  Bixby  & 
Co.  were  not  responsible  for,  except 
as  bailees." 


61 


CH.  II.]  TRANSACTIONS   DISTINGUISHED    FROM   SALES.  [§  52. 

the  goods  have  been  actually  received  by  the  consignee,  no 
question  will  ordinarily  arise,  and  the  transaction  will  be 
deemed  a  sale,  or,  in  the  case  of  a  factor,  the  subjecting  of  the 
goods  to  the  operation  of  his  lien.1  But  where  the  goods  have 
been  sent  forward,  and  while  in  transit  are  intercepted  by  the 
creditors  of  one  party  or  are  overtaken  by  accident,  the  ques- 
tion of  the  effect  of  the  transaction  presents  difficulties.  Upon 
this  question  the  authorities  are  in  conflict,2  certain  of  the  cases 
holding  that  the  goods  do  not  become  subject  to  the  claim  of 
the  consignee  until  they  actually  come  into  his  possession ; 3 
others  assert  the  doctrine  that  where  advances  have  been  pre- 
viously made  in  reliance  upon  a  promise  to  subsequently  con- 
sign goods,  a  delivery  to  the  carrier,  consigned  to  the  party,  is 
sufficient,4  while  others  hold  that,  in  addition  to  such  a  deliv- 
ery, it  is  necessary  that  the  advances  should  have  been  made 
in  reliance  upon  this  particular  consignment.5  In  a  recent 
case,  in  which  the  authorities  are  reviewed,  the  court  say: 
"  The  rule  seems  to  be  that,  in  order  to  change  the  title  to  the 
property  shipped  and  vest  it  in  the  consignee,  there  must  be  a 
bill  of  lading,  receipt,  or  letter  of  information  forwarded  to 
the  consignee,  or  that  the  advancements  were  made  upon  the 
faith  of  the  particular  consignment."  6 

§  52.  Sale  to  be  distinguished  from  contract  for  work  and 
labor.—  Sale,  still  further,  is  to  be  distinguished  from  a  con- 
tract for  the  performance  of  work  and  labor.  This  distinction 
becomes  important  most  frequently  in  cases  affected  by  the 
statute  of  frauds,  and  will  be  separately  considered  in  that  con- 

i  See  Mechem  on  Agency,  §  1035.  »  Davis  v.  Bradley,  28  Vt.  118,  65 

2  See  Mechem  on  Agency,  §  1035.  Am.  Dec.  226:  Holbrook  v.  Wight,  24 

3  Saunders  v.  Bartlett,  12  Heisk.  Wend.  (N.  Y.)  169,  35  Am.  Dec.  607; 
(Tenn.)  316;  Oliver  v.  Moore,  12  id.  Valle  v.  Cerre,  36  Mo.  575,  88  Am. 
482;  Woodruff  v.  Eailroad  Co.,  2  Dec.  161;  Desha  v.  Pope,  6  Ala.  690, 
Head  (Tenn.),  87.  See  Halliday  v.  41  Am.  Dec.  76;  Hodges  v.  Kimball, 
Hamilton,  11  Wall.  (U.  S.)  564.  49  Iowa,  577,  31  Am.  R.  159;  Elliott 

4  Elliott  v.  Cox,  48  Ga.  39;  Harde-  v.  Bradley,  23  Vt.  217. 

man  v.  De  Vaughn.  49  Ga.  596;  Wade        6  First  Nat.  Bank  v.  Mc Andrews,  5 
v.  Hamilton,  30  Ga.  450;  Nelson  v.    Mont.  325,  51  Am.  R  51. 
Railroad  Co.,  2  111.  App.  180. 

5  65 


§  52.]  LAW    OF    SALE.  [BOOK    I. 

nection ;  but  it  may  and  does  arise  in  cases  to  which  that  stat- 
ute does  not  apply.  The  rules  of  construction  must  be  sub- 
stantially the  same  in  both  classes  of  cases,  though,  perhaps, 
rather  more  technical  tests  have  been  applied  in  those  cases 
which  are  affected  by  the  statute. 

Where  the  statute  of  frauds  is  not  concerned,  the  question 
may  become  important  as  a  matter  of  pleading,  as  a  matter  of 
damages,  or  as  a  matter  of  liability  for  loss  where  the  loss  must 
follow  the  title.  The  question  here,  as  in  the  many  other  cases 
already  considered,  is  not  a  matter  of  names,  but  of  essence  and 
intent,  involving  an  investigation  into  the  real  situation  and 
purpose  of  the  parties,  as  well  as  an  inquiry  as  to  the  form  of 
the  contract  they  have  made. 

Thus  in  a  recent  case  in  Wisconsin,1  it  appeared  that  the 
plaintiff  had  agreed  to  manufacture  a  large  quantity  of  engrav- 
ings and  lithographs  for  theatrical  purposes,  for  the  defendant 
for  his  special  use,  to  be  taken  and  paid  for  during  the  theat- 
rical season  of  1885-86,  and  all  of  the  work  to  be  completed 
ready  for  delivery  by  December  15,  1885.  A  large  part  of  the 
goods-  was  taken  and  paid  for  during  the  season,  and  the  bal- 
ance was  ready  for  delivery  at  the  time  agreed  upon,  but  not 
being  called  for  or  paid  for  was  destroyed  by  fire  on  May  26, 
18S6,  while  piled  up  and  set  apart  for  the  defendant  on  the 
plaintiff's  premises.  The  plaintiff  had  had  these  goods  insured 
and  had  received  a  portion  of  the  insurance  money.  He  sued 
to  recover  the  price  of  the  goods  remaining  unpaid  for. 

Said  the  court,  per  Orton,  J. :  "  The  learned  counsel  on  both 
sides,  and  the  court  below,  treated  this  transaction  as  a  sale  of 
personal  property.  It  was  not  a  sale.  When  the  contracts 
were  entered  into  there  was  nothing  in  solido  to  be  the  subject 
of  a  sale.  The  mere  paper,  as  the  basis  of  this  valuable  work 
of  mechanical  art,  was  not  only  of  insignificant  value,  but  was 
not  the  subject  of  sale.  The  defendant  did  not  wish  to  buy 
blank  paper,  and  the  plaintiff  had  none  to  sell.     The  plaintiff 

1  Central  Lithographing  &  Eng.  R  186.  See  also  Patrick  v.  Colorado 
Co.  v.  Moore  (1889),  75  Wis.  170,  43  N.  Smelting  Co.  (1894),  20  Colo.  268,  38 
W.  R.  1124,  6  L.  R  A.  788,  17  Am.  St.    Pac.  R.  236. 

66 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FROM    SALES.  [§  53. 

was  to  manufacture  these  engravings  and  lithographs  for  the 
especial,  peculiar  and  exclusive  use  of  the  defendant  in  his 
business  as  a  theatrical  manager.  They  were  advertisements 
adapted  to  the  names  and  characters  of  his  theatrical  perform- 
ances. It  was  the  plaintiff's  work  of  skill  that  gave  the  prop- 
erty produced  by  it  any  value.  It  was  work  and  labor  per- 
formed according  to  the  order  and  direction  of  the  defendant, 
and  according  to  the  terms  of  the  contracts.  "When  the  re- 
quired works  were  produced  and  ready  to  be  taken  away  by 
the  defendant  and  paid  for,  it  was  then  not  a  sale.  The  plaintiff 
did  not  own  them,  and  did  not  wish  to  own  them,  for  they 
were  of  no  use  or  value  whatever  to  him,  and  were  only  of  use 
and  value  to  the  defendant.  When  the  job  was  completed  ac- 
cording to  the  contracts,  then  the  defendant  was  under  legal 
obligation  to  take  them  away,  and  pay  the  amount  agreed 
upon.1" 

Further  illustration  of  this  question  will  not  be  attempted 
here,  as  it  will  be  dealt  with  so  frequently  under  various 
aspects  hereafter;  enough  has  been  given  to  indicate  the  point 
of  differentiation  in  this  place  material. 

§  53.  Sale  to  be  distinguished  from  compromise  respect- 
ing conflicting  liens. —  Again,  a  sale  is  to  be  distinguished 
from  a  compromise  respecting  conflicting  claims  or  liens,  and 
the  release  thereof  by  one  party  to,  or  for  the  benefit  of,  the 
other.  Thus,  in  one  case  it  appeared  that  separate  judgment 
creditors  had  caused  executions  to  be  levied  upon  the  same 
property,  each  claiming  priority,  and  that  they  had  afterwards 
mutually  agreed  to  release  their  liens,  permit  one  to  make  a 
new  levy,  and  sell  for  the  benefit  of  both.  After  such  sale,  the 
creditor  making  it  refused  to  recognize  that  the  other  had  any 
right  to  share  in  the  proceeds,  and  the  latter  brought  an  action 
to  recover.  The  defense,  among  other  things,  was  that  the  re- 
lease was  a  sale,  and  therefore  void  under  the  statute  of  frauds 
because  it  was  not  evidenced  by  writing,  but  the  court  held  that 
it  was  not  a  sale,  but  "  a  compromise  of  conflicting  claims." l 

i  Mygatt  v.  Tarbell  (1890),  78  Wis.  351,  47  N.  W.  R.  618. 
67 


§54.] 


LAW    OF    SALE. 


[book 


§  54.  Furnishing  of  food  by  restaurant  or  innkeeper  as 
sale. —  Whether  the  supplying  of  articles,  by  restaurant  and 
innkeepers,  to  their  guests  and  patrons,  to  be  consumed  on  the 
premises,  as  food,  constitutes  a  "  sale  "  of  those  articles  within 
the  meaning  of  statutes  forbidding,  for  example,  the  sale  of 
oleomargarine  or  intoxicating  liquors,  is  a  question  which  has 
been  much  discussed  in  recent  cases,  and  perhaps  deserves  at- 
tention in  this  chapter.  While  some  difference  of  opinion  has 
existed,  the  authorities1  are,  in  the  main,  agreed  that,  where  the 


1  In  Commonwealth  v.  Miller  (1890), 
131  Pa.  St.  118,  18  Atl.  R.  938,  the  de- 
fendant was  owner  and  proprietor 
of  a  restaurant  in  Pittsburgh,  and 
furnished  meals  to  transient  and 
regular  patrons  who  paid  for  the 
same  daily  and  upon  the  completion 
of  each  meal.  On  a  certain  day  two 
men  called  at  the  restaurant,  asked 
for  a  meal,  and  were  at  once  fur- 
nished with  it.  Among  the  articles 
of  food  was  a  small  dish  of  what  ap- 
peared to  be  butter,  but  which  was 
in  fact  oleomargarine.  At  the  com- 
pletion of  the  meal  the  same  was 
paid  for,  and  the  oleomargarine  taken 
away  by  the  two  men.  Suit  was 
brought  against  the  proprietor  of  the 
restaurant  for  the  recovery  of  the 
statutory  penalty  imposed  upon 
"  every  person  .  .  .  who  shall 
manufacture,  sell,  or  offer,  or  expose 
for  sale,  or  have  in  his  .  .  .  pos- 
session with  intent  to  sell  "  oleomar- 
garine. The  court  held  the  trans- 
action to  be  a  sale,  though  from  that 
opinion  the  chief  justice  dissented. 
In  their  opinion,  delivered  by  Clark, 
J.,  the  court  said:  "That  the  food 
furnished  to  McRay  and  Spence,  or 
so  much  of  it  as  they  saw  fit  to  ap- 
propriate, was  sold  to  them,  cannot 
be  reasonably  questioned;  when  it 
was  set  before  them,  it  was  theirs  to 
all  intents  and  purposes,  to  eat  all,  or 


a  part,  as  they  chose,  subject  only  to 
the  restaurateur's  right  to  receive 
the  price,  which  it  is  admitted  was 
promptly  paid.  They  might  not  eat 
all  of  the  article  set  before  them,  but 
they  had  an  undoubted  right  to  do 
so;  and  even  assuming  that  the  meal 
is  the  portion  of  food  taken,  in  the 
sense  stated,  the  transaction  must 
be  regarded  as  a  sale  wholly  within 
the  meaning  and  purport  of  the  stat- 
ute. It  is  certain  that  the  oleomar- 
garine composed  a  part  of  the  meal 
the  price  of  which  was  paid,  and  was 
embraced  in  the  transaction  as  an 
integral  part  thereof.  If  an  un- 
licensed keeper  of  a  restaui-ant  may 
set  before  his  guests  a  bottle  of  wine, 
or  other  intoxicating  liquor,  charg- 
ing a  regular  price  for  the  same,  with 
other  articles  of  food  furnished,  with 
liberty  to  take  much  or  little  of  the 
liquor  as  the  guest  may  choose,  or, 
failing  to  drink  it  with  his  meal,  per- 
mit him  to  take  it  away  with  him, 
then  the  liquor  laws  of  the  common- 
wealth are  of  no  avail,  and  the  license 
to  sell  liquor  is  wholly  unnecessary. 
When  the  liquor  is  thus  furnished 
and  paid  for,  it  is  in  legal  effect  a 
sale,  for  the  very  act  has  been  done 
which  it  is  the  policy  of  the  law  to 
prevent,  and  which  it  characterizes 
as  a  crime,  viz.,  furnishing  intoxicat- 
ing liquors  at  a  price  which  is  paid. 


68 


CH. 


II.] 


TRANSACTIONS    DISTINGUISHED    FROM    SALES. 


[§54. 


proprietor  sets  before  his  guest,  at  the  latter's  request,  a  num- 
ber of  articles  as  constituting  a  "meal,"  for  which  the  guest  is 
to  pay,  these  articles  are  then  the  guest's  "  to  all  intents  and 
purposes,  to  eat  all  or  part,  as  he  chooses,  subject  only  to  the 


So,  in  this  case,  the  oleomargarine 
was  furnished  to  the  person  named 
as  food,  and  the  price  was  paid.  As 
the  learned  judge  of  the  court  below 
well  said,  it  was  not  given  away,  and 
the  fact  that  it  was  not  sold  sep- 
arately, hut  with  other  articles,  for 
a  gross  sum,  would  not  make  it  less 
a  sale.  It  therefore  comes  within 
the  letter  of  the  law,  and  it  is  also 
within  its  spirit.  If  the  use  of  such 
articles  is  injurious,  it  would  seem  to 
be  especially  within  the  spirit  of  the 
act  to  prohibit  public  caterers  from 
selling  them  to  their  guests  as  part 
of  an  ordinary  meal.  Penal  statutes 
are  to  be  strictly  construed,  but  both 
the  letter  and  the  spirit  of  the  act  of 
1885  cover  this  case,  and  we  think 
the  judgment  was  properly  entered." 

Paxson,  C.  J.,  dissenting  from  the 
foregoing,  said:  "When  the  legisla- 
ture used  the  word  « sale,'  it  is  fair 
to  assume  that  it  was  employed  in 
the  sense  in  which  it  is  popularly 
understood.  If  it  was  the  intention 
not  only  to  prohibit  sales  of  oleo- 
margarine, but  also  its  use  as  an 
article  of  food,  or  in  the  preparation 
of  food,  by  proprietors  of  eating- 
houses,  restaurants,  and  hotels,  it 
was  easy  to  have  said  so  in  express 
terms.  As  the  act  stands,  there  is 
nothing  to  warn  this  defendant  that 
he  violated  it  by  placing  oleomar- 
garine on  the  table  as  an  article  of 
food. 

"  I  am  unable  to  see  how  the  legal 
or  popular  meaning  of  the  word  'sale  ' 
will  support  this  judgment.  A  sale 
is  the  transfer  of  the  title  to  property 


at  an  agreed  price.  Story  on  Sales, 
§  1 ;  Creveling  v.  Wood,  95  Pa.  St.  152. 
I  find  nothing  in  the  facts,  as  set 
forth  in  the  case  stated,  to  justify 
the  conclusion  that  there  was  a  sale 
of  the  oleomargarine.  The  two  indi- 
viduals referred  to  entered  the  de- 
fendant's place  of  business,  and 
ordered  a  meal.  It  was  furnished,  but 
oleomargarine  formed  no  part  of  it. 
It  is  true,  there  was  some  of  that 
article  on  the  table.  They  might 
have  partaken  of  it,  but  they  did  not. 
When  they  left  they  carried  the  oleo- 
margarine away  with  them.  This,  in 
my  opinion,  they  had  no  right  to  do. 
A  guest  at  a  hotel  may  satisfy  his 
appetite  when  he  goes  to  the  table. 
He  may  partake  of  anything  that  is 
placed  before  him;  but,  after  filling 
his  stomach,  he  may  not  also  fill  his 
pockets,  and  carry  away  the  food  he 
cannot  eat.  This  I  understand  to  be 
the  rule  as  applicable  to  hotels  and 
eating-houses  in  this  country,  and  if 
there  is  anything  in  this  case  to  take 
it  out  of  its  operation  it  does  not  ap- 
pear in  the  case  stated.  The  illustra- 
tion of  the  bottle  of  wine,  referred  to 
in  the  opinion  of  the  court,  does  not 
appear  to  me  a  happy  one.  Surely, 
if  a  proprietor  of  a  hotel  places  a  bot- 
tle of  wine  before  his  guest,  who  does 
not  partake  thereof,  it  cannot  be  said 
that  it  is  a  sale  of  the  wine,  nor  has 
the  guest  the  right  to  carry  it  away. 
He  might  as  well  carry  off  the  table 
furniture." 

In  Commonwealth  v.  Worcester 
(1879),  126  Mass.  256,  the  defendant 
sold    meals   in    his    dwelling-house. 


69 


§  5 


I-] 


LAW    OF    SALE. 


[BOOK    I. 


restaurateur's  right  to  receive  the  price;"  and  that  if,  among 
the  articles  so  furnished,  is  the  forbidden  article,  there  is  a 
"  sale "  of  that  so  far  as  the  restaurateur  is  concerned,  even 
though  it  was  not  specially  ordered,  or  was  not  separately  priced, 
or  was  not  eaten  by  the  guest.  A  fortiori,  within  this  view 
would  there  be  a  sale ;  if  the  article  in  question  is  expressly  or- 
dered and  separately  paid  for.1 

Whether,  under  like  general  circumstances,  there  would  be 
a  purchase  by  the  guest,  was  not  the  subject  of  investigation  in 
the  cases  cited,  for  in  all  of  them  the  guest  or  patron  was  act- 
ively or  passively  assenting  to  the  act.  It  would  be  clear,  how- 
ever, if  the  question  became  material,  that  the  patron  could 
not  become  a  purchaser  without  his  express  or  implied  assent. 


With  these  meals,  and  as  a  part 
thereof,  were  served  wine,  lager  beer 
and  other  liquors.  No  bar  was  in  the 
room,  but  upon  the  tables  were 
placed  bottles  containing  the  liq- 
uors. When  the  guests  got  through 
they  paid  the  defendant  for  the 
meal.  The  court  said:  "The  purchase 
of  a  meal  includes  all  the  articles 
that  go  to  make  up  the  meal.  It  is 
wholly  immaterial  that  no  specific 
price  is  attached  to  those  articles 
separately.  If  the  meal  included  in- 
toxicating liquors,  the  purchase  of 
the  meal  would  be  a  purchase  of  the 
liquors."  The  defendant  was  there- 
fore properly  found  guilty  of  keeping 
a  tenement  used  for  the  illegal  sale 
and  illegal  keeping  of  intoxicating 
liquors. 

i  In  Commonwealth  v.  Vieth  (1892), 
155  Mass.  442, 29  N.  E.  R.  577,  the  com- 
plaint charged  the  defendant  with 
selling  milk  below  the  required  stand' 
ard  of  quality.  He  was  the  keeper  of 
a  hotel,  who  purchased  his  milk  from 
a  regular  dealer,  and  furnished  it  to 
his  guests  in  the  same  condition  in 


which  he  received  it.  The  milk  com- 
plained of  was  delivered  to  one  Bald- 
win, upon  his  ordering  a  glass  of 
milk  from  the  waiter  in  the  cafe,  to 
be  drunk  upon  the  premises.  It  was 
held  that  the  evidence  tended  to 
show  a  sale  in  the  defendant's  cafe 
of  a  glass  of  milk,  apparently  a  trans- 
action in  itself,  and  clearly  within 
the  statute  imposing  a  fine  for  the 
sale  of  milk  not  of  the  required  stand- 
ard of  quality. 

In  Commonwealth  v.  Warren  (1894), 
160  Mass.  583,  36  N.  E.  R  308,  an  em- 
ployee of  a  milk  inspector  called  at 
the  defendant's  public  house  and  or- 
dered a  breakfast  in  the  dining-room. 
He  asked  for  a  glass  of  milk  with  his 
breakfast,  part  of  which  he  carried 
away  and  analyzed.  Thirty-five  cents 
was  paid  for  the  breakfast,  and  noth- 
ing for  the  milk  as  distinct  from  the 
breakfast.  The  court  held  that  this 
was  as  much  a  sale  of  the  milk  as 
though  a  specific  price  had  been  put 
upon  it,  or  it  had  been  bought  and 
paid  for  by  itself. 


70 


OH.  II.]  TRANSACTIONS   DISTINGUISHED    FKOM    SALES.  [§   55. 

§  55.  Supplying  goods  by  several  common  owners  to  one 
of  them  —  Social  clubs  —  Intoxicating  liquors. —  The  ques- 
tion whether  the  supplying  of  intoxicating  liquors  by  social 
clubs  to  their  members  constitutes  a  sale  within  the  meaning 
of  the  statutes  prohibiting  sales  without  a  license,  the  keeping 
open  of  bars  on  Sunday,  and  the  like,  has  also  frequently  arisen 
and  given  much  difficulty  in  its  determination.  The  question 
depends  so  largely  upon  the  character  of  the  club,  the  language 
of  the  statute,  and  circumstances  of  each  case,  that  it  cannot 
be  exhaustively  considered  here.  But  in  general  it  has  been 
'held  by  the  English  and  several  American  courts  that  when 
the  club  is  organized  in  good  faith  with  a  limited  membership 
for  other  purposes  than  the  mere  supplying  of  liquors,  and  the 
liquors  are  supplied  to  members  in  accordance  with  the  rules 
of  the  club  and  simply  as  a  part  of  the  general  refreshments 
furnished  by  the  club,  there  is  no  sale  within  the  meaning  of 
the  statutes.  It  has  been  contended  in  these  cases  that  as  the 
liquors  belonged  to  the  club,  and  the  member  in  obtaining 
them,  though  at  a  fixed  price,  was  but  exercising  his  rights  as 
a  member  of  the  club  in  pursuance  of  the  original  contract  of 
membership,  there  was  no  new  contract  of  sale  between  the 
club  of  which  he  was  thus  a  member  as  seller  and  himself  as 
purchaser.1     Many  other  American  cases,  however,  have  re- 

1  In  Commonwealth  v.  Smith  (1869),  liquor  was  purchased  with  the  club's 

102  Mass.    144,  the    defendant   was  funds  and  dispensed  to  its  members, 

agent  of  a  club,  bought  liquors  with  each  paying  a  stipulated  price  for 

the  club's  money,  and  furnished  said  the  liquor  consumed,  which  money 

liquor  to  the  club  members.     The  was  used  solely  to  keep  up  the  stock 

plan  was  for  the  members  to  ad-  and  cover  the  expenses  of  serving, 

vance  money  to  the  club  and  receive  and  was  not  taken  with  a  view  to 

in  return  checks  of  the  denomina-  profit,  such  a  transaction  did  not  vio- 

tion  of  five  cents,  which  were  pre-  late  the  liquor  law  providing  that  no 

sented  at  the  club  bar  and  liquor  person  should  sell,  dispose  of,  barter 

given  in  exchange.    Held,  that  these  or  (if  a  dealer)  give  away  fermented 

facts  would  not,  as  a  matter  of  law,  liquors  on  Sunday, 

show  a  sale.  Graff  v.  Evans  (1882),  8  Q.  B.  Div. 

In  Seim  v.  State  (18S0),  55  Md.  566,  373,  is  a  well  known  case.     A  bona 

39  Am.  R.  419,  the  court  held  that  fide    club,  with    limitations    as    to 

where  a  bona  fide  social  club  was  membership,  entrance  fees,  trustees 

formed,  in  connection  with  which  for  the  control  of  its  property,  and 

71 


§55.] 


LAW    OF    SALE. 


[BOOK    I. 


pudiated  this  distinction,  and  held  that,  as  it  was  optional  with 
the  member  whether  he  would  obtain  the  liquors  or  not,  and 


other  characteristics  common  to  so 
cial  clubs,  dispensed  liquors  to  its 
members  without  a  license,  and  the 
court  held  that  this  was  not  a  "sale 
by  retail  "  of  such  liquors  within  the 
meaning  of  the  licensing  act. 

In  Tennessee  Club  v.  Dwyer  (1S83), 
11  Lea  (Tenn.),  452,  47  Am.  R  298,  it 
was  held  that  a  club  which  main- 
tained a  library,  gave  musical  enter- 
tainments, afforded  meals  to  its 
members,  and  kept  a  small  stock  of 
liquors  which  were  for  the  use  of 
members  and  paid  for  as  used,  no 
profit  being  made,  was  not  liable 
to  pay  a  privilege  tax  as  a  retail 
liquor  dealer. 

In  Commonwealth  v.  Pomphret 
(1884),  137  Mass.  564,  50  Am.  R.  340,  it 
was  held  that  the  steward  of  a  club 
was  not  liable  for  keeping  intoxicat- 
ing liquors  with  intent  to  sell  the 
same,  where  the  club  was  limited  in 
its  membership,  hired  the  steward, 
who  was  a  member,  to  deliver  liquors 
to  the  other  members  upon  presenta- 
tion of  checks  representing  a  certain 
sum,  and  the  money  received  was 
used  by  the  steward  in  buying  liq- 
uors in  the  name  of  and  for  the  ben- 
efit of  the  club. 

In  Commonwealth  v.  Ewig  (1887). 
145  Mass.  119,  13  N.  E.  R.  365,  it 
was  held  that,  under  a  state  of 
facts  showing  a  dispensing  of  liquors 
to  members  of  a  bona  fide  social 
club,  there  was  no  "  sale  "  of  intoxi- 
cating liquors.  So  in  Barden  v.  Mon- 
tana Club  (1891),  10  Mont.  330, 25  Pac. 
R  1042,  24  Am.  St.  R.  27,  11  L.  R  A. 
593.  the  court  held  that,  under  a  state 
of  facts  showing  a  bona  fide  literary 
and  social  club,  which  furnished  its 
members  with  liquors  with  no  intent 
to  evade  the  liquor  laws  and  without 


profit  to  itself,  there  was  no  "deal- 
ing in  "  or  "  selling  "  at  retail.  Pied- 
mont Club  v.  Commonwealth  (1891), 
87  Va.  541,  12  S.  E.  R  963,  under  a 
similar  state  of  facts,  announced  the 
same  opinion. 

In  Columbia  Club  v.  McMaster 
(1891),  35  S.  C.  1,  14  S.  E.  R  290,  the 
court  held  that  "  the  distribution  of 
liquors  by  a  bona  fide  club  among  its 
members  is  not  a  'sale'  within  the 
inhibition  of  a  liquor  law,  even 
though  the  person  receiving  the  liq- 
uor gives  money  for  it." 

lri  State  v.  St.  Louis  Club  (1894), 
125  Mo.  308,  28  S.  W.  R.  604,  26  L.  R 
A.  573,  the  authorities  were  elab- 
orately considered,  and  the  court 
held  that,  where  a  bona  fide  social 
club,  not  incorporated  for  profit,  sells 
liquor  to  a  member,  that  does  not 
constitute  a  sale  within  the  inhibi- 
tion of  the  liquor  law. 

In  People  v.  Adelphi  Club  (1896), 
149  N.  Y.  5,  43  N.  E.  R  410,  52  Am. 
St.  R.  700,  31  L.  R  A.  510,  a  bona  fide 
club,  with  a  limited  membership, 
which  maintained  a  library  and 
reading  rooms,  and  supplied  its  mem- 
bers with  liquors  with  no  purpose  of 
making  a  profit  therefrom,  was  held 
not  to  be  within  the  contemplation 
of  the  statute  requiring  licenses  for 
the  selling  of  intoxicating  liquors. 
The  court  said:  "  We  think  the  trans- 
action did  not  amount  to  a  sale 
within  the  meaning  of  the  statute.  It 
was  but  a  distribution  among  the 
members  of  the  club  of  the  property 
that  belonged  to  them.  The  fact 
that  a  payment  was  made  does  not 
change  the  character  of  the  act." 
See  People  v.  Andrews,  115  N.  Y.  427 
(infra ). 

And  in  Klein  v.  Livingstone  Club, 


72 


CH.  II.]  TRANSACTIONS    DISTINGUISHED    FKOM    SALES. 


[{ 


00. 


as  he  obtained  them  from  the  owner,  the  club,  and  paid  there- 
for a  price  agreed  upon,  all  of  the  elements  of  sale  were  present.1 
But,  on  the  other  hand,  all  of  the  cases  are  practically  agreed 
that  where  the  "  club  "  is  but  a  mere  subterfuge  —  a  device  for 


(1896),  177  Pa.  St.  224,  35  Atl.  R  606, 
55  Am.  St  R  717,  under  a  similar 
state  of  facts,  the  court  announced 
the  same  opinion. 

iln  Marmont  v.  State  (1874),  4S 
Ind.  21.  there  was  a  club  formed  for 
social  and  relief  purposes,  which  met 
each  Sunday.  On  Saturday  of  each 
week  tbe  treasurer,  by  order  of  the 
club,  bought  a  keg  of  beer,  which 
was  carried  to  the  place  of  meeting, 
and  on  Sunday  the  beer  was  drunk 
by  the  members,  each  one,  upon  re- 
ceiving a  glass  of  it,  paying  five 
cents  to  the  treasurer,  which  money 
was  put  in  the  club's  treasury.  Held 
to  be  a  violation  of  the  law  prohib- 
iting sales  of  intoxicating  liquors  on 
Sunday. 

In  Martin  v.  State  (1877).  59  Ala. 
34.  the  agent  of  an  incorporated  club 
sold  liquors  to  the  members,  no  li- 
cense having  been  taken  out.  It  was 
held  that  the  ownership  of  the  liq- 
uors changed  so  as  to  constitute  a 
sale,  passing  from  the  corporation 
aggregate  to  the  individual  mem- 
bers, for  a  valuable  consideration. 

In  Chesapeake  Club  v.  State  (1885), 
63  Md.  446,  the  court  was  construing 
not  the  general  Sunday  liquor  law, 
which  was  passed  upon  in  Seim  v. 
State  (supra),  but  the  local-option 
act,  and  it  held  that  under  this  act, 
providing  "that  no  person  or  per- 
sons, company,  corporation  or  asso- 
ciation shall  deposit  or  have  in  his, 
her,  their  or  its  possession  ,  .  . 
any  intoxicating  liquors  .  .  .  with 
intent  to  sell  or  give  away  the  same 
in  violation  of  law,  or  with  intent 


that  the  same  shall  be  sold  or  given 
away  by  another  person,"  shall  be 
liable,  the  furnishing  of  liquors  on 
Sunday  by  an  incorporated  club  to 
its  members  was  an  act  in  violation 
of  law. 

In  State  v.  Lockyear  (18S6),  95  X.  C. 
633,  59  Am.  R  287,  the  court  held 
that  the  dispensing  of  liquors  for  the 
convenience  of  members  by  an  ordi- 
nary social  club  was  "  in  the  strict 
legal  sense"  a  sale.  In  State  v. 
Horacek  (1889),  41  Kan.  87,  21  Pac. 
R  204,  3  L.  R  A  687,  it  was  held 
that  when  an  incorporated  associa- 
tion purchased  beer  and  brought  it 
into  Kansas,  and  furnished  it  to  its 
members  in  exchange  for  chips  pur- 
chased from  the  association,  there 
was  a  violation  of  the  law  against 
selling  intoxicating  liquors.  And  in 
People  v.  Soule  (1889),  74  Mich.  250, 
41  N.  W.  R  908,  2  L.  R.  A  494,  the 
court  held  that  a  club  properly  or- 
ganized for  social  purposes  could  not 
distribute  liquors  among  its  mem- 
bers, receiving  pay  therefor  as  dis- 
tributed, which  went  into  the  club 
treasury  to  replenish  stock  and  pay 
expenses,  without  being  liable  to  pay 
a  retail  tax  for  selling  such  liquors. 
So  in  Newark  v.  Essex  Club  (1890), 
53  X.  J.  L.  99,  20  AtL  R.  769,  the  fur- 
nishing liquors  to  club  members, 
where  the  club  made  no  profit  and 
there  was  no  purpose  to  evade  the 
law.  was  held  to  constitute  a  sale  of 
liquor  by  the  club.  State  v.  Easton 
Club  (1890),  73  Md.  97,  20  Atl.  R.  783, 
10  L.  R  A.  64,  was  a  case  similar 
to  Chesapeake  Club  v.  State,  and  the 
?3 


55.] 


LAW    OF    SALE. 


[BOOK    I. 


avoiding  the  operation  of  the  statute  —  it  furnishes  no  protec- 
tion, and  that  its  supplying  of  liquors  to  its  so-called  members 
constitutes  a  sale  within  the  prohibition  of  the  acts.1 


court  came  to  the  same  decision,  con- 
struing the  same  local-option  act. 

In  Kentucky  Club  v.  Louisville 
(1891),  92  Ky.  309,  17  S.  W.  R.  743, 
the  court  held  that  a  city  ordinance 
laying  a  tax  on  every  club  house 
where  intoxicating  liquors  were  sold 
by  retail  applied  to  a  club  which, 
under  the  ordinary  arrangements, 
dispensed  liquors  to  its  members 
only. 

In  Nogales  Club  v.  State  (1891),  69 
Miss.  218,  10  S.  R.  574,  it  was  held 
that  where  a  social  club  had  a  back 
room  partly  disconnected  from  the 
other  rooms,  in  which  it  disposed  of 
liquors,  at  prices  regulated  by  the 
club,  to  members  and  visitors,  em- 
ploying a  steward  for  the  purpose  at 
a  fixed  salary,  it  was  within  a  stat- 
ute prohibiting  sales  of  intoxicating 
liquors  to  minors.  t 

In  State  v.  Neis  (1891),  108  N.  C. 
787,  13  S.  E.  R.  225,  12  L.  R.  A.  412, 
a  number  of  persons,  members  of 
a  club,  were  owners  in  common  of 
a  jug  of  liquor,  which  they  put  in 
the  hands  of  a  steward,  and  each 
time  one  of  them  took  a  drink  from 
the  jug  he  gave  the  steward  ten 
cents,  the  money  to  be  used  in  re- 
plenishing the  jug.  Held,  that  this 
constituted  a  sale.  So  in  State  v. 
Boston  Club  (1893),  45  La.  Ann.  585, 
12  S.  R.  895,  the  court  held  that  when 
a  social  club  distributed  liquor  to  its 
members  the  transaction  was  a  sale, 
saying  that,  "  whether  incorporated 
or  not,  in  both  cases  the  property 
passes  to  the  individual  member  and 
the  money  paid  becomes  the  prop- 
erty of  the  club." 

In  Krnavek  v.  State  (1897),  38  Tex. 


Crim.  R.  44.  41  S.  W.  R.  612,  the  case 
concerned  a  bona  fide  club,  and  the 
court  said:  "The  question  here  is 
whether  the  sale  of  intoxicants  by 
the  managing  steward  or  barkeeper 
of  the  club  to  one  of  the  members  of 
said  club  is  a  sale.  We  are  of  opin- 
ion that  it  is." 

In  Mohrman  v.  State  (1898).  105 
Ga.  709,  32  S.  E.  R.  143,  43  L.  R.  A. 
398,  the  indictment  was  against  the 
manager  of  a  social  club  for  "  keep- 
ing open  a  tippling-house  on  the  Sab- 
bath day."  The  determination  of  the 
question  whether  there  had  been  a 
sale  of  liquor  was  not  necessary  under 
the  indictment,  but  the  court  dis- 
cussed the  point  and  approved  those 
authorities  which  hold  that  for  a 
club  to  distribute  liquors  among  its 
members  is  a  sale. 

i  In  State  v.  Mercer  (1871),  32  Iowa, 
405,  a  so-called  "  social  club  *'  was 
formed  whose  sole  object  appeared 
to  be  to  supply  its  members  with 
liquors  in  contravention  of  the  law. 
The  members  were  given  tickets  in 
exchange  for  money  paid,  and  these 
tickets  were  taken  in  payment  for 
liquors.  It  was  held  that  the  sale  of 
the  tickets  was  in  fact  the  sale  of  the 
liquors,  and  the  defendant  was  guilty 
of  a  violation  of  the  law. 

In  Rickart  v.  People  (1875),  79  111. 
85,  an  association  was  formed  for  the 
avowed  purpose  of  promoting  tem- 
perance and  friendship.  One  of  the 
members,  who  was  made  treasurer, 
ran  a  dram-shop,  and  the  other  mem- 
bers, upon  payment  of  a  dollar  each, 
received  tickets  representing  the 
amount  paid,  which  were  presented 
at  the  dram-shop  and  honored  in  pay- 
(•4 


CH. 


II.] 


TRANSACTIONS    DISTINGUISHED    FROM    SALES. 


[§56. 


§  56.  Transfer  of  title  by  operation  of  law.—  Finally,  to 
be  distinguished  from  the  transfers  to  be  considered  in  the 
present  treatise  are  those  which  result  from  operation  of  law. 
For  example,  "  a  recovery  for  the  conversion  or  for  the  taking 
of  a  specific  chattel,  and  satisfaction  of  the  judgment,  changes 
the  property  in  a  chattel  by  operation  of  law,  on  the  principle 
that  solutio  pretii  emptionis  loco  habetur;  where  the  transfer, 
by  such  means,  is  considered  as  a  complete  and  absolute  change 
of  title."  l 

Such  cases,  clearly,  do  not  depend  upon  the  mutual  negotia- 
tion and  agreement  of  the  parties,  and  are  foreign  to  the  pres- 
ent subject. 


ment  for  liquors  or  cigars.  The  treas- 
urer received  all  the  money  and  ren- 
dered no  account.  Held,  that  such 
dispensing  of  liquors  without  a  license 
was  a  violation  of  the  law  against  the 
sale  of  intoxicating  liquors. 

People  v.  Andrews  (1889),  115  N.  Y. 
427,  22  N.  E.  R.  358,  6  L.  R.  A.  128, 
has  been  a  much  misunderstood  case. 
It  was  long  thought  that  it  held  the 
distributing  of  liquors  by  bona  fide 
social  clubs  to  their  members  to  be 
sales  within  the  meaning  of  the 
liquor  laws,  and  several  cases  were 
decided  by  the  general  terms  in  har- 
mony with  that  view.  But  in  People 
v.  Adelphi  Club,  supra,  the  court  of 
appeals  declared  that  such  was  not 
the  meaning  of  this  case.  The  facts 
showed    a    fraudulent    attempt    to 


evade  the  laws  under  the  guise  of  a 
club,  any  one  being  admitted  to  mem- 
bership on  payment  of  a  nominal  fee, 
which  was  returned  to  him  upon 
withdrawal.  It  was  this  feature 
which  controlled  the  decision,  and 
its  application  is  confined  to  such 
cases  of  fraud. 

i  Thayer  v.  Manley  (1878),  73  N.  Y. 
305,  309.  See  also  Cooper  v.  Shepherd 
(1846),  3  Com.  B.  266, 54  Eng.  Com.  L. 
265;  Lovejoy  v.  Murray  (1865),  3  Wall. 
(U.S.)  1;  Fox  v.  Prickett  (1869),  34 
N.  J.  L.  13;  Miller  v.  Hyde  (1894),  161 
Mass.  472,  37  N.  E.  R.  760,  42  Am.  St. 
R.  424,  and  note  at  p.  433,  where  the 
mooted  question,  whether  it  is  the 
judgment  or  its  satisfaction  which 
transfers  the  title,  is  discussed. 


75 


CHAPTER  III. 


OF  THE  CAPACITY  OF  PARTIES  — WHO  MAY  BUY  AND  SELL. 


§  57.  Purpose  of  this  chapter. 
I.  Of  Capacity  in  General. 

58.  General  rule  as  to  competency. 

59.  Presumption  of  competency. 

60.  Causes  and  classification  of  in- 

competency. 

1.  Natural  Incompetency. 

61.  What  here  included. 

a.  Persons  of  Unsound  Mind. 

62.  Scope  of  present  treatment. 

63.  Insane  persons  as  parties  to 

contracts  generally. 

64.  Degree  of  incapacity  which 

avoids. 

65.  Weakness  of  mind  and  impo- 

sition combined. 

66.  Mere  inadequacy  of  price. 

07.  Partial  insanity  —  Monoma- 
nia —  Sane  interval. 

68.  Presumption  as  to  sane 

intervals. 

69.  Effect  of  judicial  determina- 

tion of  insanity. 

70.  Only  prima  facie  evi- 
dence as  to  period  covered. 

71.  Petitioner  for  proceeding 

not  estopped  by  it. 

72.  Whether  contracts  of  insane 

person  void  or  voidable. 

73.  Avoiding  contract — Executed 

and  executory. 

74.  75.  Protection  of  inno- 

cent party. 

76.  Insane  person  must  have 

received  benefit. 


§  77.  Return  of  consideration 

necessary. 

78,  79.  Right,  to  recover  from 

bona  fide  purchaser. 

80.  Who  may  disaffirm. 

81.  Creditor  may  not. 

82.  Sane  party  may  not. 

83.  Affirmance  of  contract. 

84.  Contract  of  insane  person  for 

necessaries,  binding. 

85.  Liability  limited  to  value 

received. 

b.  Incompetency  of  Drunkards. 

86.  Contracts  of  drunken  persons. 

87.  Voidable,  not  void. 

88.  Bona  fide  holders. 

89.  Habitual  drunkards. 

90.  Partial  intoxication   coupled 

with  fraud. 

91.  Drunkards    under    guardian- 

ship. 

c.  Incompetency  of  Spendthrifts. 

92.  Contracts  of  spendthrifts,  etc. 
2.  Legal  Incompetency. 

93.  In  general. 

a.  Incapacity  of  Infants. 


94. 

In  general. 

95. 

Infant's    contracts    voidable, 

not  void. 

96. 

What  meant  by  voidable. 

97. 

Who  may  avoid. 

98. 

When  avoided. 

99. 

When  ratified. 

100. 

How  much  to  be  ratified. 

CH.  III.] 


CAPACITY   OF   PARTIES. 


§  101. 
102. 

103. 


112. 
113. 
114 
115. 

116. 
117. 
118. 
119. 

120. 

121. 


125. 
126. 


127. 


128. 


129. 


—  Effect  of  ratification. 

—  Knowledge  of  non-liabil- 
ity. 

—  Consideration   for  ratifi- 
cation. 

104, 105.  Ratification,  how  ef- 
fected. 

106.  Sale  or  exchange  by  infant 

voidable. 

107.  When  avoided. 

108.  How  avoided. 

109.  Return  of  consideration. 

110.  Bona  fide  purchasers. 

111.  Chattel  mortgage  voidable. 

When  avoided. 

Returning  consideration. 

How  avoided. 

Purchases  voidable,  if  not  nec- 
essaries. 

When  avoided. 

How  avoided. 

Return  of  consideration. 

Ineffectual  defenses — Re- 
coupment— Injury  to  goods. 

Effect  of  disaffirmance  — 

Revests  seller's  title. 

Ratification  of  purchases. 

122.  Liability  of  infant  for  neces- 
saries. 

123, 124.  For   what    amount 

bound. 

—  Interest. 

—  Goods  must  have  been 
furnished  on  infant's  ac- 
count. 

—  Infant  not  liable  if  al- 
ready supplied. 

—  Seller  supplies  goods  at 
his  peril. 

—  Infant  living  with  par- 
ents, etc.,  presumed  to  be 
supplied. 

130.  What  constitute  necessaries. 

131.  How  determined  —  Bur- 
den of  proof. 

132.  Illustrations. 


6.  Incapacity  of  Married  Women. 

g  133.  What  here  considered. 

134.  Common-law  disability. 

135.  Equitable  doctrines  as  to  sep- 

arate estate. 

136.  Statutes  removing  disability. 

137.  To  what  extent. 

138.  What  contracts  she  may 

make. 

139.  Statutory    liability    for 

family  necessaries. 

ft  Capacity  of  Corporations. 

140.  In  general. 

141.  Corporations  as  sellers. 

142.  Corporations  as  buyers. 

d.  Capacity  of  Partnerships. 

143.  In  general. 

144.  Partnerships  as  sellers. 

145.  Partnerships  as  buyers. 

II  Sales  by  Persons  Haylvg  Only 
a  Defeasible  Title 


146.  Such  a  person  in  possession 

may  pass  good  title  to  bona 
fide  purchaser. 

147.  One  holding  subject  to 

secret  lien. 

148.  Fraudulent  vendee. 

149.  One  who  obtained  goods 

by  trick. 

150.  Fraudulent    grantee   of 

debtor. 

151.  Fraudulent  debtor. 

152.  Conditional  vendea 

153.  Purchaser  for  cash  who 

has  not  paid. 

IIL  Sales  by  Persons  Having  Only 
an  Ostensible  Title. 

154.  155.  In    general,  one    cannot 

convey  better  title  than  he 
has. 
156.  Possession  alone   insufficient 
evidence  of  title. 
77 


57.] 


LAW    OF    SALE. 


[BOOK    I. 


§  157.  Possession    coupled  with  in- 
dicia of  ownership. 

158, 159.  What  requisite. 

160-164.  Illustrations. 

165.  Limitations. 

166.  Appearance  of  title  from  pos- 

session of  bill  of  lading  or 
warehouse  receipt. 

167.  Ostensible  title  of  vendor  in 

possession. 

168.  169.  Ostensible  title    under 

Factors  Acts. 

170.  Ostensible  title  by  conduct. 

IV.  Sales  and  Purchases  by  Per- 
sons Acting  for  Others. 

171.  In  general. 

172.  Nature  of  authority. 

2.  Authority  to  Sell  Personal  Prop- 

erty. 

173.  How  considered. 

a.  Authority  to  Sell  Conferred   by 

Law. 

174.  Chief  illustrations. 

b.  Authority  Conferred  by   Act   of 

Party. 

175.  Express  authority  to  sell. 

176.  Implied  authority  to  sell. 

177.  None  implied  from  mere 

possession. 

178.  None  implied  from  mere  re- 

lationship —  Husband    and 
wife  —  Parent  and  child. 

179.  None  implied  from  authority 

to  do  other  kinds  of  acts. 

3.  Authority  to  Buy  Personal  Prop- 

erty. 

180.  How  considered. 


a.  Authority  to   Buy  Conferred  by 

Law. 

§  181.  Chief  instances. 

182.  Authority  of  wife  to  buy  nec- 

essaries on  husband's  credit. 

183.  Where  parties  are  living 

together. 

184.  Where  parties  are  living 

apart. 

185.  What    constitute   neces- 
saries. 

186.  Authority  of  infant  child  to 

buy  necessaries  on  parent's 
credit. 

b.  Authority  to  Buy  Conferred  by 

Act  of  Party. 

187.  Express  authority  to  buy. 

188.  Implied  authority  to  buy. 

189.  Not  implied  from    mere 

relationship  of  parties. 

V.  Sales  by  Persons  Acting  est  an 
Official  Capacity. 

190.  In  general. 

191.  Authority    must    be    strictly 

construed. 

192.  Officer  must  keep  within  the 

term  and  territory   of  his 
office. 

193.  Officer  cannot  deal  with  him 

self. 

194.  Purchasers  at  execution,  tax, 

and  similar  sales. 

195.  Purchases    at  executors',  ad- 

ministrators' and  guardians' 
sales. 

196.  Trustees'  sales. 


§57.  Purpose  of  this  chapter.— Having  now  considered 
the  questions  arising  out  of  the  definition  and  differentiation 
of  the  contract  of  sale,  attention  will  next  be  given  to  the  ques- 
tion of  who  may  sell  or  buy.     This  primarily  leads  to  the  dis- 

7b 


CH.  III.]  CAPACITY    OF    PARTIES.  [§§  58-60. 

cussion  of  the  capacity  of  parties,  in  general,  to  enter  into  the 
contract  of  sale ;  but,  for  convenience  sake,  a  wider  range  will 
be  given  to  the  present  chapter  so  as  to  include  certain  allied 
matters  which  fall,  perhaps,  as  logicall}7  under  this  head  as 
under  any  other,  and  there  will  be  considered  here  the  ques- 
tions — 

I.  Of  sales  and  purchases  by  parties  acting  in  their  own 
right;  and  herein  of  capacity  in  general.     - 
II.  Of  sales  by  persons  having  only  a  defeasible  title. 

III.  Of  sales  by  persons  having  only  an  ostensible  title. 

IV.  Of  sales  and  purchases  by  persons  acting  only  in  a  repre- 

sentative capacity,  or  sales  and  purchases  by  agents. 
V.  Of  sales  by  persons  acting  in  an  official  capacity. 

I. 

Or  Capacity  of  Parties  in  General. 

§  58.  General  rule  as  to  competency. —  Sale  being  a  trans- 
fer of  title  in  pursuance  of  a  contract,  it  follows  that,  as  a  rule, 
the  same  capacity  is  requisite  for  the  making  of  a  contract  of 
sale  as  for  the  making  of  any  other  contract;  or,  stated  af- 
firmatively, that  any  person  who  is  capable  of  making  con- 
tracts generally  is  competent  to  enter  into  the  contract  of  sale. 

§  59.  Presumption  of  competency. —  The  law  does  not  pre- 
sume that  the  parties  to  a  contract  were  incompetent.  On  the 
contrary,  the  presumption  is  that  they  were  competent,  and 
the  burden  of  proving  incompetency  rests  upon  him  who  al- 
leges it.     At  the  same  time  — 

§  60.  Causes  and  classification  of  incompetency. —  There 
are  many  persons  who  are,  either  generally  or  in  special  cases, 
incompetent  to  contract,  and  this  incompetency  requires  con- 
sideration. Incompetency  may  arise  either  from  infirmity  of 
the  mind  or  it  may  be  created  by  law.  The  former  kind  is 
often  termed  natural  incompetency,  while  the  latter  is  desig- 
nated legal  incompetency.     Of  the  first  kind  are  the  defects 

79 


§§  61-64]  LAW    OF   SALE.  [BOOK   I. 

of  idiots,  insane  persons  and  drunken  persons;  and  of  the  lat- 
ter kind  is  the  incompetency  of  aliens,  infants  and  married 
women. 

1.  Natural  Incompetency. 

§  61.  What  here  included. —  As  suggested  in  the  preceding 
section,  there  will  be  included  under  this  head  the  question  of 
the  incompetency  of  the  insane  person,  the  drunkard,  and  the 
spendthrift;  and  these  subjects  will  be  considered  in  the  order 
named. 

a.  Incompetency  by  Reason  of  Mental  Unsoundness  or  Weak- 
ness. 

§62.  Scope  of  present  treatment. —  It  is  not  the  purpose 
here  to  enter  minutely  into  the  consideration  of  the  question  of 
the  capacity  of  insane  persons  to  make  contracts  generally,  as 
that  subject  belongs  more  appropriately  to  works  upon  the  law 
of  contracts ;  but  a  brief  reference  to  some  of  the  leading  prin- 
ciples and  to  certain  of  the  more  important  cases  may  be  of 
service.  In  what  will  be  said,  no  attempt  will  be  made  to  dis- 
tinguish between  the  various  forms  of  mental  disease  which 
are  sometimes  classified  as  idiocy,  delirium,  lunacy,  mania,  and 
the  like. 

§  63.  Insane  persons  as  parties  to  contracts  generally. — 

Mental  incapacity  may  arise  from  a  great  variety  of  causes  and 
present  almost  numberless  degrees  of  completeness.  It  may 
be  the  result  of  inheritance,  illness,  accident  or  intemperance, 
and  may  be  general  in  its  nature,  though  limited  in  its  degree, 
or  it  may  be  complete  as  to  some  subjects  or  on  some  occasions, 
while  not  existing  at  other  times  or  in  reference  to  other  mat- 
ters.    Hence  — 

§  64.  Degree  of  incapacity  which  avoids  contracts. —  It  is 

not  every  degree  of  mental  weakness  which  incapacitates  one 
for  entering  into  contracts,  but  it  must  be  of  such  a  degree  that 
the  person  is  unable  to  intelligently  comprehend  the  act  to 

80 


CH.  III.]  CAPACITY   OF   PARTIES.  [§  65. 

which  the  contract  relates,  or  to  intelligently  will  to  do  such 
act.1 

In  the  absence  of  fraud  or  imposition,  therefore,  mere  weak- 
ness of  intellect,2  old  age,3  "  vacillation,  shiftlessness,  improvi- 
dence, occasional  despondency  or  religious  hobby," 4  physical 
weakness,  or  want  of  judgment  and  discretion,5  is  not  enough, 
but  the  disability  must  be  so  great  that  the  person  is  "  wholly, 
absolutely  and  completely  unable  to  understand  or  comprehend 
the  nature  of  the  transaction." 8 

§65.  Weakness  of  mind  and  imposition  combining. —  But 

though  the  weakness  of  mind  or  partial  defect  be  not  sufficient 
to  incapacitate,  yet  if  there  be  evidence  of  co-existing  fraud, 
undue  advantage  or  imposition  operating  upon  such  weakened 
or  defective  intellect,  the  two  combining  may  be  enough  to  in- 
validate the  dealing.7 

The  rules  upon  this  subject  have  been  well  stated  in  one 
case8  as  follows:  "Mere  weakness  of  intellect,  if  the  party  is 
compos  mentis,  does  not  deprive  him  of  the  capacity  to  con- 
tract; but  imbecility  of  understanding  constitutes  a  material 
ingredient  in  examining  whether  a  bond  or  other  contract  has 
been  obtained  by  fraud  or  imposition  or  undue  influence;  for 
although  a  contract  made  by  a  man  of  fair  understanding  may 

i  Hovey  v.  Chase,  52  Me.  304,  83  Am.  mania.    Connor  v.   Stanley,  72  CaL 

Dec.  514;  Jackson  v.  King,  4  Cow.  556,  1  Am.  St.  R.  84. 

(N.  Y.j  218,  15  Am.  Dec.  354;  Sands  v.  5  Hovey  v..  Chase,  52  Me.  304,  83 

Potter,  165  111.  397,  46  N.  E.  R.  282.  Am.  Dec.  514. 

2  Jackson  v.  King,  4  Cow.  (N.  Y.)  6  Aldrich  v.  Bailey,  132  N.  Y.  85, 
207,  15  Am.  Dec.  354;  Smith  v.  Be-  30  N.  E.  R.  264. 

atty,  2  Ired.  (N.  C.)  Eq.  456,  40  Am.  7  Garrow  v.  Brown,  Winston's  Eq. 

Dec.  435;  Juzan  v.  Toulmm,  9  Ala.  (N.  C.)  46,  86  Am.  Dec.  450;  Juzan  v. 

662,  44  Am.  Dec.  448;  Ellis  v.  Math-  Toulmin,  9  Ala.  662,44  Am.  Dec.  448; 

ews,  19  Tex.  390,  70  Am.  Dec.  353;  Jackson  v.  King,  4  Cow.  (N.  Y.)  207, 

Harrison  v.  Otley,  101  Iowa,  652,  70  15  Am.  Dec.  354:  Ellis  v.  Mathews, 

N.  W.  R.  724;  Aldrich  v.  Bailey,  132  19  Tex.  390,  70  Am.  Dec.  353;  Seeley 

N.  Y.  85,  30  N.  E.  R.  264.  v.   Price,   14  Mich.   541;    Darnell  v. 

3  Smith  v.  Beatty,  supra;  Aldrich  Rowland,  30  Ind.  342;  Henry  v.  Rite- 
v.  Bailey,  supra.  nour,  31  Ind.  136;  Yount  v.  Yount, 

*  West  v.  Russell,  48  Mich.  74.  Be-  144  Ind.  133,  43  N.  E.  R.  136. 
lief  in  spiritualism  does  not  of  itself  8  Juzan  v.  Toulmin,  supra. 
show  insanity  unless  it  aiaounts  to  a 

6  81 


§§  66,  67.]  LAW    OF    SALE.  [BOOK   I. 

not  be  set  aside,  merely  because  it  was  a  rash,  improvident  or 
bard  bargain,  yet  if  made  with  a  person  of  imbecile  mind,  the 
inference  naturally  arises  that  it  was  obtained  by  circumven- 
tion or  undue  influence.1  In  Blackford  v.  Christian?  Lord 
Wynford  said  a  bargain  into  which  a  weak  mind  is  drawn, 
under  the  influence  of  deceit  and  falsehood,  ought  not  to  be 
held  valid.  And  a  degree  of  weakness  of  intellect  far  below 
that  which  would  justify  a  jury,  under  a  commission  of  lunacy, 
in  finding  him  incapable  of  controlling  his  person  and  property, 
coupled  with  other  circumstances  to  show  that  the  weakness, 
such  as  it  was,  had  been  taken  advantage  of,  will  be  sufficient 
to  set  aside  any  important  deed." 

§  66.  Mere  inadequacy  of  price  or  other  inequality  in  the 
bargain  is  not,  it  is  said  in  the  same  case,  "to  be  understood  as 
constituting  per  se  a  ground  to  avoid  a  bargain  in  equity. 
Courts  of  equity,  as  well  as  courts  of  law,  act  upon  the  ground 
that  every  person  who  is  not,  from  his  peculiar  condition  or 
circumstances,  under  disability,  is  entitled  to  dispose  of  his 
property  in  such  manner  and  upon  such  terms  as  he  chooses; 
and  whether  his  bargains  are  wise  and  discreet  or  otherwise, 
profitable  or  unprofitable,  are  considerations  not  for  courts  of 
justice  but  for  the  party  himself  to  deliberate  upon.  Where, 
however,  the  inadequacy  is  such  as  to  demonstrate  some  gross 
imposition  or  undue  influence,  or,  to  use  an  expressive  phrase, 
shock  the  conscience,  and  amount  in  itself  to  conclusive  and 
decisive  evidence  of  fraud,  equity  ought  to  interfere.  And 
gross  inadequacy  of  price,  when  connected  with  suspicious  cir- 
cumstances or  peculiar  relations  between  the  parties,  affords  a 
vehement  presumption  of  fraud. 

§  67.  Partial  insanity  —  Monomania  —  Sane  intervals. — 

It  is  not  enough  that  the  person  may  be  partially  insane,  or 
insane  only  as  to  certain  subjects,  or  that  he  may  occasionally 
be  insane,  unless  it  appears  also  that  the  contract  was  in  refer- 
ence to  those  subjects  to  which  his  insanity  applied,  or  was 

1  Citing  1  Story's  Eq.  Jur.  238-242.        2 1  Knapp,  77. 

82 


CH.   III.]  CAPACITY    OF    PARTIES.  [§§  OS,  69. 

made  during  his  insane  intervals.  If  made  as  to  subjects  in 
reference  to  which  his  incapacity  did  not  exist,1  or,  in  the  other 
case,  if  made  during  his  sane  intervals,2  the,  contract  will  be 
valid. 

§  68.  Presumption  as  to  sane  intervals. — Where  gen- 
eral or  habitual  insanity  is  shown  to  have  existed  during  a 
given  period,  the  presumption  will  be  that  it  was  continuous 
during  that  period,  and  the  person  who  alleges  that  a  sane  in- 
terval existed  at  the  time  the  particular  contract  was  made 
must  assume  the  burden  of  proving  it.3 

§69.  Effect  of  judicial  determination  of  insanity.— "All 

contracts  of  a  lunatic,  habitual  drunkard  or  person  of  unsound 
mind,"  it  is  said  in  a  late  case,4  "  made  after  an  inquisition  and 
confirmation  thereof,  are  absolutely  void,  until,  by  permission 
of  the  court,  he  is  allowed  to  assume  control  of  his  property.5 
In  such  cases  the  lunacy  record,  as  long  as  it  remains  in  force, 
is  conclusive  evidence  of  incapacity.  Contracts,  however,  made 
by  this  class  of  persons  before  office  found,  but  within  the  pe- 
riod overreached  by  the  finding  of  the  jury,  are  not  utterly 
void,  although  they  are  presumed  to  be  so  until  capacity  to 
contract  is  shown  by  satisfactory  evidence.6  Under  such  cir- 
cumstances the  proceedings  in  lunacy  are  presumptive,  but  not 
-conclusive,  evidence  of  a  want  of  capacity.     The  presumption, 

iGalpin  v.  Wilson,   40  Iowa,  90;  Paige  (N.  Y.),  422,  22  Am.  Dec.  655; 

Searle  v.  Galbraith,  73  111.  269.  Wadsworth  v.  Sharpsteen,  8  N.  Y. 

2  Lee  v.  Lee,  4  McCord  (S.  C),  183,  388,  59  Am.  Dec.  499;  2  N.  Y.  R.  S., 

17  Am.  Dec.  722;  In  re  Gangwere,  14  p.  1094,  sec.  10.     To  the  same  effect: 

Pa.  St.  417,  53  Am.  Dec.  554;  Staples  Pearl  v.  McDowell,  3  J.  J.  Marsh. 

v.  Wellington,  58  Me.  453;  Lewis  v.  (Ky.)  658,  20  Am.  Dec.  199;  Leonard 

Baird,  3  McLean   (U.  S.  C.  C),  56;  v.   Leonard,    14    Pick.    (Mass.)    283; 

Boyce  v.  Smith,  9  Gratt,  (Va.)  704,  60  Kichol  v.  Thomas,  53  Ind.  42;  Freed 

Am.  Dec.  313.  v.  Brown,  55  Ind.  310;  Griswold  v. 

a  Rogers  v.  Walker,  6  Pa.  St.  371,  Butler,  3  Conn.  227;  Elston  v.  Jasper, 

47  Am.  Dec.  470;  Case  of  Cochran's  45  Tex.  409;  Mohr  v.  Tulip,  40  Wis. 

Will,  1  T.  B.  Mon.  (Ky.)  264,  15  Am.  66;  Imhoff  v.  Whitmer,  7  Casey  (Pa.), 

Dec.  116,  and  note  citing  many  cases.  243. 

*  Hughes  v.  Jones,  116  N.  Y.  67,  15        «  Citing  2  R.  S.,  supra;  Van  Deusen 

Am.  St.  R.  386,  22  N.  E.  R.  446.  v.  Sweet,  51  N.  Y.  378;    Banker  v. 

6  Citing  L'Amoureaux  v.  Crosby,  2  Banker,  63  N.  Y.  409. 

83 


§§  70-72.]   -  LAW   OF   SALE.  [BOOK    I. 

whether  conclusive  or  only  prima  facie,  extends  to  all  the 
world,  and  includes  all  persons,  whether  they  have  notice  of  the 
inquisition  or  not.'1 '  The  rule  here  laid  down  is  approved  by 
the  majority  of  the  courts,  though  the  decisions  differ  in  some 
respects  owing  to  peculiarities  of  the  local  statutes  and  the 
composition  and  functions  of  the  tribunal.2 

§  70.  Inquisition  only  prima  facie  evidence  as  to  pe- 
riod overreached  by  it, —  As  stated,  however,  the  inquisition, 
while  conclusive  as  to  contracts  subsequently  made,  is  only 
prima  fade  evidence  of  incapacity  during  the  period  before 
the  commencement  of  the  proceeding  and  overreached  by  it, 
and  it  may  be  rebutted  by  evidence  of  actual  capacity  at  the 
particular  time  at  which  the  act  in  controversy  was  done.3 
So,  on  the  other  hand,  a  rinding  of  insanity  at  a  prior  period 
is  not  conclusive,  and  may  be  rebutted.4 

§  71.  Petitioner  for  proceeding  not  estopped  by  it. — 

The  petitioner  for  the  inquisition  proceeding  is  not  so  far  a 
party  to  the  proceeding  as  to  be  estopped  thereby,  except  as 
all  the  world  is  estopped,  and  he  may,  therefore,  by  evidence 
rebut  the  presumption  arising  out  of  the  very  proceeding  which 
he  himself  has  instituted.5 

§  72.  Whether  contract  of  insane  person  void  or  void- 
able.—  It  is  laid  down  by  many  of  the  older  authorities  that 
the  contract  of  the  insane  person,  whether  before  or  after 
oilice  found,  is  void;  but  the  decided  tendency  of  the  mod- 

1  Citing  Hart  v.  Deamer,  6  Wend.  L'Amoureaux  v.  Crosby,  2  Paige 
(N.  V.i  197;  Osterhout  v.  Shoemaker,  (N.  Y.),  422,  22  Am.  Dec.  655;  Field 
:;  II  ill  (N.  Y.),  513;  1  Greenl.  Ev.  v.  Lucas,  21  Ga.  447,  68  Am.  Dec.  4<m; 
§  556.  Titlow  v.  Titlow,  54  Pa.  St.  216,  93 

2  See  Hopson  v.  Boyd,  6  B.  Mon.  Am.  Dec.  G91. 

(Ky.)  2'.)ir.  Parker  v.  Davis,  8  Jones        *  Gibson  v.  Soper,  6  Gray  (Mass.), 

(N.  C),  4G0;  Ilartv.  Deamer,  6  Wend  279,  66  Am.  Dec  41  L 
(N.  V.)  497;  Little  v.  Little.  18  Gray        •"'  Bughea  v.  Jones,  116  N.  Y.  67,  22 

(Mass.),    864;    Xauger   v.   Skinner,   1  N  E.  R.  440,  15  Am.  St.  R.  386;  In  re 

Mc<  Mi-t.-r  iN.  J.i.  889.  Oangwere,  14  Pa.St.417,  58  Am.  Dec. 

3 Hughes  v.  Jones,  116  N.  Y.  67.  22  554;  Hutchinson   v.  Sandt,  4  Rawle 

N.  E.  R,  446,  10   Am  St.  B.  386;  (Pa.),  234,  26  Am.  Deo.  127. 

84 


CH.  III.]  CAPACITY    OF    PARTIES.  [§  72. 

ern  cases  is  to  the  effect  that  the  contract  made  before  of- 
fice found  is  voidable  and  not  void,  and  this  may  be  said  to 
be  the  prevailing  rule.1  At  the  same  time  there  are  some  very 
cogent  reasons  which  have  been  brought  forward  in  recent 
cases  in  support  of  the  older  rule.  Thus  it  is  said  by  Mr.  Jus- 
tice Strong  in  the  United  States  supreme  court : 2  "  The  funda- 
mental idea  of  a  contract  is  that  it  requires  the  assent  of  two 
minds;  but  a  lunatic  or  a  person  non  compos  mentis  has  noth- 
ing which  the  law  recognizes  as  a  mind,  and  it  would  seem, 
therefore,  upon  principle,  that  he  cannot  make  a  contract  which 
may  have  any  efficiency  as  such.  He  is  not  amenable  to  the 
criminal  laws,  because  he  is  incapable  of  discriminating  be- 
tween that  which  is  right  and  that  which  is  wrong.  The  gov- 
ernment does  not  hold  him  responsible  for  acts  injurious  to 
itself.  Why,  then,  should  one,  who  has  obtained  from  him 
that  which  purports  to  be  a  contract,  be  permitted  to  hold  him 
bound  by  its  provisions,  even  until  he  may  choose  to  avoid  it? 
If  this  may  be,  efficacy  is  given  to  a  form  to  which  there  has 
been  no  mental  assent.  A  contract  is  made  without  any  agree- 
ment of  minds,  and  as  it  plainly  requires  the  possession  and 
exercise  of  reason  quite  as  much  to  avoid  a  contract  as  to  make 
it,  the  contract  of  a  person  without  mind  has  the  same  effect 
as  it  would  have  had  he  been  in  full  possession  of  ordinary  un- 

i  Odom  v.  Riddick,  104  N.  C.  515,  10  Creekmore  v.  Baxter,  121  N.  C.  31,  27 
S.  E.  R.  609,  17  Am.  St.  R.  686;  Pear-  S.  E.  R.  994;  Louisville,  etc.  Ry.  Co. 
son  v.  Cox,  71  Tex.  246,  9  S.  W.  R.  v.  Herr,  135  Ind.  591,  35  N.  E.  R.  556 
124,  10  Am.  St.  R.  740;  Riggan  v.  (citing  Ashmead  v.  Reynolds,  127 
Green,  80  N.  C.  236,  30  Am.  R.  77;  Ind.  441,  26  N.  E.  R.  80;  Boyer  v. 
Eaton  v.  Eaton,  37  N.  J.  L.  108,  18  Berryman,  123  Ind.  451,  24  N.  E.  R. 
Am.  R.  716;  Hovey  v.  Hobson,  53  Me.  249;  Schuff  v.  Ransom,  79  Ind.  458; 
451, 89  Am.  Dec.  705;  Hovey  v.  Chase,  Fay  v.  Burditt,  81  Ind.  433;  Harden- 
52  Me.  304,  83  Am.  Dec.  514;  Allis  v.  brook  v.  Sherwood,  72  Ind.  403;  Wray 
Billings,  6  Met.  (Mass.)  415,  39  Am.  v.  Chandler,  64  Ind.  146;  Freed 
Dec.  744;  Carrier  v.  Sears,  4  Allen  v.  Brown,  55  Ind.  310;  Nichol  v. 
(Mass.).  336,  81  Am.  Dec.  707;  Gibson  Thomas,  53  Ind.  42;  Musselman  v. 
v.  Soper,  6  Gray  (Mass.),  279,  66  Am.  Cravens,  47  Ind.  1);  Gribben  v.  Max- 
Dec.  414;  Wait  v.  Maxwell,  5  Pick,  well,  34  Kan.  8,  7  Pac.  R.  584,  55  Am. 
(Mass.)  217,  16  Am.  Dec.  391;  Breck-  R.  233;  Thorpe  v.  Hanscom,  64  Minn, 
enridge  v.  Ormsby,  1  J.  J.  Marsh.  201,  66  N.  W.  R.  1:  ^Etna  L.  Ins.  Co. 
(Ky.)  289,  19  Am.  Dec.  71:  Allen  v.  v.  Sellers,  154  Ind.  370,  56  N.  E.  R.  97. 
Berry  hill,  27  Iowa,  534,  1  Am.  R  300;        2  in  Dexter  v.  Hall,  15  Wall.(U.  S.)  9. 

85 


§  73.]  LAW    OF   SALE.  [BOOK    I. 

derstanding.  While  he  continues  insane  he  cannot  avoid  it, 
and  if,  therefore,  it  is  operative  until  avoided,  the  law  affords 
a  lunatic  no  protection  against  himself ;  yet  a  lunatic,  equally 
with  an  infant,  is  confessedly  under  the  protection  of  courts  of 
law  as  well  as  courts  of  equity.  The  contracts  of  the  latter,  it  is 
true,  are  generally  held  to  be  only  voidable  (his  power  of  at- 
torney being  an  exception).  Unlike  a  lunatic  he  is  not  desti- 
tute of  reason.  He  has  mind,  but  it  is  immature,  insufficient 
to  justify  his  assuming  a  binding  obligation,  and  he  may  deny 
or  avoid  his  contract  at  any  time,  either  during  his  minority 
or  after  he  comes  of  age.  This  is  for  him  a  sufficient  protec- 
tion; but  as  a  lunatic  cannot  avoid  a  contract  for  want  of  men- 
tal capacity  he  has  no  protection  if  his  contract  is  only  void- 
able." Reasoning  to  the  same  effect  may  be  found  in  other 
cases,1  but  it  has  not  been  deemed  sufficient  to  establish  the 
rule  of  absolute  invalidity. 

After  office  found,  however,  and  during  its  continuance,2 
thouo-h  not  after  its  termination  or  abandonment,3  the  con- 
tract  of  the  incompetent  is  held  absolutely  void. 

§  73.  Avoiding  contract  —  Executed  and  executory  con- 
tracts.—  Contracts  of  an  insane  person  made  before  office  found, 

1  See  opinion  of  Cole,  J.,  in  Allen  v.  3  Mohr  v.  Tulip,  40  Wis.  66;  Elston 
Berry  hill,  27  Iowa,  540;  of  Gibson,  v.  Jasper,  45  Tex.  409.  In  Thorpe  v. 
C.  J.,  in  Desilver's  Estate,  5  Rawle  Hanscom  (1896),  64  Minn.  201,  66  N. 
(Pa.),  110;  and  the  case  of  Van  Deu-  W.  R.  1,  the  head-note  by  the  court  is 
sen  v.  Sweet,  51  N.  Y.  378  (but  com-  as  follows:  "The  deed  of  an  insane 
pare  Aldrich  v.  Bailey,  132  N.  Y.  85,  person  not  under  guardianship  is 
30  N.  E.  R.  264);  Rogers  v.  Black  well,  voidable  only;  but  while  he  is  under 
49  Mich.  192,  13  N.  W.  R.  512;  Sulli-  actual  and  subsisting  guardianship 
van  v.  .Flynn,  20  D.  C.  396;  Farley  v.  he  is  conclusively  presumed  incom- 
Parker,  6  Oreg.  105.  petent  to  make  a  valid  deed  concern- 

The  rule  of  absolute  invalidity  is  ing  his  estate,  though  he  is  in  fact 

strongly  established  in  the  federal  sane  at  the  time  he  attempts  to  do 

courts,    following    Dexter    v.    Hall,  so.   If,  however,  at  the  time  he  made 

supra.    See  Parker  v.  Marco,  76  Fed.  the  deed,  he  was  in  fact  of  sound 

R.  510;  German  Sav.  &  Loan  Society  mind,  and  the  contract  fair,  and  the 

v.  De  Lashmutt,  67  Fed.  R.  399.  guardianship  had   been   practically 

2  Pearl  v.  McDowell,  3  J.  J.  Marsh,  abandoned,  the  deed  is  valid  though 
(Ky.)  658,  20  Am.  Dec.  199;  Leonard  the  guardian  had  not  been  formally 
v.  Leonard,  14  Pick.  (Mass.)  280.  discharged  by  the  court." 

83 


Cn.  III.]  CAPACITY    OF   PARTIES.  [§  74. 

which  yet  remain  purely  executory,  require,  ordinarily,  no  ex- 
press act  of  disaffirmance,  and  are  therefore  much  more  readily 
and  justly  avoided  than  after  they  have  been  partially  or  fully 
executed.1  This  is  particularfy  so  when  the  mental  unsound- 
ness was  known  to  the  other  party  or  might  have  been  discov- 
ered by  the  exercise  of  ordinary  observation.2  Contracts  for 
necessaries,  however,  though  executory,  stand  upon  different 
ground,  and  will  be  considered  later.3 

In  the  case  of  executed  contracts,  on  the  other  hand,  differ- 
ent elements  intervene.  Thus  it  becomes  material  to  inquire 
whether  the  other  party  knew  of  the  insanity,  whether  it  was 
in  the  ordinary  course  of  business,  and  whether  the  parties  can 
be  put  in  statu  quo.  Influenced  by  such  considerations  it  is  ob- 
vious that  many  executed  contracts  ought  not  to  be  disturbed 
which  would  not  have  been  enforced  so  long  as  they  remained 
purely  executory ;  and  as  the  result  of  these  elements  the  mod- 
ern rule  has  grown  up  that  — 

§  74. Protection  of  innocent  party. —  Where  the  sane 

party  has  entered  into  the  contract,  before  office  found,  in  good 
faith,  without  notice  of  the  other's  insanity  and  with  nothing 
in  the  surrounding  circumstances  to  reasonably  apprise  him  of 
the  fact,  the  contract  executed,  if  fair  and  equitable,  will  not 

1  Musselman  v.  Cravens,  47  Inrl.  1;  by  the  party  under  disability,  there 
Van  Patton  v.  Beals,  46  Iowa,  62;  must  be  an  act  of  disaffirmance  be- 
Sentance  v.  Poole,  3  Car.  &  P.  (Eng.)  fore  the  other  party  can  be  put  in 
1;  Dunnage Y.White.l  Wils.Ch.(Eng.)  the  wrong,  and  a  complete  right  of 
67;  Hall  v.  Warren,  9  Ves.  (Eng.)  605.  action  established  to  recover  the  con- 
In  Fay  v.  Burditt,  81  Ind.  433,  42  Am.  sideration  so  paid,  or  the  possession 
R  142,  it  is  said:  "If  the  contract  of  property  which  has  been  surren- 
in  respect  to  the  party  of  unsound  dered  or  taken  away  under  the  con- 
mind  is  wholly  executory,  no  act  of  tract  or  deed."  Citing  Musselman  v. 
disaffirmance  is  necessary  and  the  Cravens,  47  Ind.  1;  Nichol  v.  Thomas, 
incapacity  may  of  course  be  pleaded  53  Ind.  42;  Freed  v.  Brown,  55  Ind. 
in  defense  to  the  action  by  the  310;  Wray  v.  Chandler,  64  Ind.  146; 
other  party  or  his  assignee.  But  if  Hardenbrook  v.  Sherwood,  72  Ind. 
the  contract  has  been  performed,  403 ;  Schuff  v.  Ransom,  79  Ind.  458. 
or  if  the  consideration  has  been  2  Behrens  v.  McKenzie,  23  Iowa,  333, 
paid,  or  the  possession  of  property  92  Am.  Dec.  428. 
parted    with,    under    the    contract,        3  See  post,  §  84. 

87 


§?*•] 


LAW    OF    SALE. 


[UOOK    I. 


be  set  aside  unless  the  parties  can  be  put  in  statu  quo.  Not  all 
of  the  cases  support  this  rule,  but  it  is  sustained  by  the  great 
weight  of  authority.1  The  converse  of  this  ruk  is,  of  course, 
true,  for  if  the  other  party  had  notice  of  the  insanity,  or,  what 


1  As  by  Moulton  v.  Camroux,  2 
Exch.  (Eng.)  502,  where  the  rule  is 
stated  as  follows:  "We  are  not  dis- 
posed to  lay  down  so  general  a  prop- 
osition as  that  all  executed  con- 
tracts bona  fide  entered  into  must  be 
taken  as  valid,  though  one  of  the 
parties  be  of  unsound  mind;  we 
think,  however,  that  we  may  safely 
conclude  that  when  a  person  appar- 
ently of  sound  mind,  and  not  known 
to  be  otherwise,  enters  into  a  con- 
tract for  the  purchase  of  property 
which  is  fair  and  bona  fide,  and 
which  is  executed  and  completed, 
and  the  property,  the  subject-matter 
of  the  contract,  has  been  paid  for  and 
fully  enjoyed,  and  cannot  be  restored 
so  as  to  put  the  parties  in  statu  quo, 
such  contract  cannot  afterwards  be 
set  aside  by  the  alleged  lunatic  or 
those  who  represent  him,"  and  by 
Flack  v.  Gottschalk  Co.  (1898),  88  Md. 
368,  41  Atl.  R.  908,  42  L.  R.  A.  745,  71 
Am.  St.  R.  418;  McKenzie  v.  Donnell 
(1899),  151  Mo.  461,  52  S.  W.  R.  214; 
Beals  v.  See,  10  Pa.  St.  56,  49  Am. 
Dec.  573;  Lancaster  County  Bank  v. 
Moore,  78  Pa.  St.  407,  21  Am.  R. 
24;  Behrens  v.  McKenzie,  23  Iowa, 
333,  92  Am.  Dec.  428;  Allen  v.  Berry- 
hill,  27  Iowa,  534,  1  Am.  R.  309;  Fay 
v.  Burditt,  81  Ind.  43  J,  42  Am.  R.  142; 
Young  v.  Stevens,  48  N.  H.  133,  97 
Am.  Dec.  592,  2  Am.  R.  202;  Eaton  v. 
Eaton,  37  N.  J.  L.  108, 18  Am.  R.  716; 
Corbit  v.  Smith,  7  Iowa,  60,  71  Am. 
Dec.  431;  Odom  v.  Riddick,  104  N.  C. 
515,  10S.E.R  609,  17  Am.  St.  R.  686; 
Lincoln  v.  Buckmaster,  32  Vt.  658; 
Long  v.  Long,  9  Md.  348;  Matthiessen. 


etc.  Co.  v.  McMahon,  38  N.  J.  L.  536; 
Scanlan  v.  Cobb,  85  111.  296;  Wilder 
v.  Weakley,  34  Ind.  184  (where  the 
court  say:  "We  think  it  may  be 
safely  stated,  both  on  principle  and 
authority,  that  where  a  person,  ap- 
parently of  sound  mind,  and  not 
known  to  be  otherwise,  and  who  has 
not  been  found  to  be  otherwise  by 
proper  proceedings  for  that  purpose, 
fairly  and  bona  fide  purchases  prop- 
erty and  receives  and  uses  the  same, 
whereby  the  contract  of  purchase  be- 
comes so  far  executed  that  the  par- 
ties cannot  be  placed  in  statu  quo, 
such  contract  cannot  afterward  be 
set  aside  or  payment  for  the  goods 
refused,  either  by  the  alleged  lunatic 
or  his  representatives."  But  see 
Northwestern,  etc.  Ins.  Co.  v.  Blank- 
enship,  94  Ind.  535,  48  Am.  R.  185: 
Hull  v.  Louth,  109  Ind.  315,  58  Am. 
R.  405,  10  N.  E.  R.  270). 

In  Strodder  v.  Southern  Granite 
Co.  (1896),  99  Ga.  595,  27  S.  E.  R.  174, 
where  the  party  seeking  to  disaffirm 
set  up  his  poverty  as  an  excuse  for 
not  restoring  the  consideration,  the 
court  said:  "Unless  the  plaintiff 
plainly  alleges  facts  showing  that 
his  inability  to  make  restitution  arose 
from  causes  beyond  his  control,  a 
court  of  equity  cannot,  merely  be- 
cause of  a  present  inability  on  his 
part  from  poverty  to  restore  the 
original  status  existing  between  him- 
self and  his  adversary,  grant  the  re- 
lief he  seeks." 

But,  contra,  in  Seaver  v.  Phelps,  11 
Pick.  (Mass.)  304,  22  Am.  Dec.  372, 
where  the  question  was  as  to  the 


CH.  III.]  CAPACITY   OF   PARTIES.  [§  74. 

is  the  same  thing,  such  facts  as  should  have  put  him  upon  in- 
quiry,1 and,  a  fortiori,  if  he  took  advantage  of  it,  or  if  the  con- 
tract is  unfair  and  inequitable,  the  transaction  will  not  be  sus- 
tained, even  though  the  parties  cannot  be  placed  in  statu  quo.2 
In  a  leading  case,3  laying  down  the  rule,  it  appeared  that  a 
merchant,  in  the  ordinary  course  of  trade,  and  with  nothing 
to  indicate  his  incapacity,  had  purchased  goods  of  a  wholesale 
dealer,  paying  partly  in  other  goods  previously  delivered,  and 
partly  in  cash.  Afterwards  he  was  declared  insane  from  a 
period  of  only  two  days  later  than  the  sale.  The  representative 
of  the  insane  person  tendered  back  the  goods  received  from  the 
wholesale  dealer,  and  sued  him  for  the  value  of  the  goods  de- 
livered by  the  insane  person,  as  for  a  cash  sale.  After  dis- 
posing of  other  questions,  the  court,  by  Gibson,  C.  J.,  said: 
"  Should  he  have  made  a  wild  and  unthrifty  purchase  from  a 
stranger  unapprised  of  his  infirmity,  who  is  to  bear  the  loss 
that  must  be  incurred  by  one  of  the  parties  to  it?  Not  the 
vendor,  who  did  nothing  that  any  other  man  would  not  have 
done.  As  an  insane  man  is  civilly  liable  for  his  torts,  he  is 
liable  to  bear  the  consequences  of  his  infirmity,  as  he  is  liable 
to  bear  his  misfortune,  on  the  principle  that,  where  a  loss  must 

right  to  recover  the  value  of  a  prom-  contract,  for  if  the  note  was  pledged 
issory  note  pledged  by  the  plaintiff,  to  secure  the  performance  of  an  ex- 
while  insane,  to  the  defendant,  the  ecutory  contract,  and  was  part  of  the 
court  said:  "We  are  to  consider  the  same  transaction,  it  would  rather  be 
plaintiff  as  in  a  state  of  insanity  at  considered  an  executory  contract, 
the  time  he  pledged  his  note  to  the  But  we  do  not  consider  the  distinc- 
defendant,  and  this  being  admitted,  tion  at  all  material.  It  is  well  set- 
we  think  it  cannot  avail  him  as  a  tied  that  the  conveyances  of  a  non 
legal  defense,  to  show  that  he  was  compos  are  voidable,  and  may  be 
ignorant  of  the  fact,  and  practiced  avoided  by  the  writ  dum  fuit  non 
no  imposition.  The  fairness  of  the  compos  mentis,  or  by  entry." 
defendant's  conduct  cannot  supply  x  Lincoln  v.  Buckmaster,  32  Vt.  632; 
the  plaintiff's  want  of  capacity.  Ehoades  v.  Fuller,  139  Mo.  179,  40  S. 
The  defendant's  counsel  rely  prin-  W.  R.  760. 

cipally  on  a  distinction  between  con-  -  Henry  v.  Fine,  23  Ark.  417;  Lin- 
tracts  executed  and  those  which  are  coin  v.  Buckmaster,  32  Vt.  632:  Craw- 
executory.  But  if  this  distinction  ford  v.  Scovell,  94  Pa.  St.  48,  39  Am. 
were  material,  we  do  not  perceive  R.  766. 

how  it  is  made  to  appear  that  the  3  Beals  v.  See,  10  Pa.  St.  56,  49  Am. 

contract  of  bailment  is  an  executed  Dec.  573. 


§§  75,  76.]  LAW   OF    SALE.  [BOOK   I. 

be  borne  by  one  of  two  innocent  persons,  it  shall  be  borne  by 
him  who  occasioned  it.  A  merchant,  like  any  other  man,  may 
be  mad  without  showing  it;  and  when  such  a  man  goes  into 
the  market,  makes  strange  purchases  and  anticipates  extrava- 
gant profits,  what  are  those  who  deal  with  him  to  think?  To 
treat  him  as  a  madman  would  exclude  every  speculator  from 
the  transactions  of  commerce." 

§  75.  .  In  a  later  case,1  in  the  same  court,  it  is  said: 

"  The  soundness  of  this  rule  is  too  apparent  to  need  any  ex- 
tended vindication.  Insanity  is  one  of  the  most  mysterious 
diseases  to  which  humanity  is  subject.  It  assumes  such  varied 
forms  and  produces  such  opposite  effects  as  frequently  to  baffle 
the  ripest  professional  skill  and  the  keenest  observation.  In 
some  instances  it  affects  the  mind  only  in  its  relation  to  or  con- 
nection with  a  particular  subject,  leaving  it  sound  and  rational 
upon  all  other  subjects.  Many  insane  persons  drive  as  thrifty 
a  bargain  as  the  shrewdest  business  man,  without  betraying  in 
manner  or  conversation  the  faintest  trace  of  mental  derange- 
ment. It  would  be  an  unreasonable  and  unjust  rule  that  such 
person  should  be  allowed  to  obtain  the  property  of  innocent 
parties,  and  retain  both  the  property  and  its  price." 

§  76.  Insane  person  must  have  received  benefit. — 

But  this  rule  of  protection  cannot  apply  where  the  insane  per- 
son received  nothing  under  the  contract  and  it  was  therefore 
of  no  benefit  to  him,  even  though  the  other  party  acted  in  good 
faith  and  in  ignorance  of  the  insanity.  Thus,  though  a  mort- 
gage for  money  loaned  to  an  insane  person,  in  good  faith  and 
used  by  him,  may  not  be  avoided,2  a  mortgage  made  by  an 
insane  woman  to  secure  money  loaned  to  her  husband  is  not 
entitled  to  such  protection.3  For  like  reasons,  a  conveyance 
made  by  an  insane  person  without  any  consideration  will  not 
be  sustained  as  against  a  subsequent  incum1  trance  in  good 
faith,4  nor  can  an  accommodation  indorser  of  negotiable  paper 

1  Lancaster  County  Bank  v.  Moore,  Blankenship,  94  Ind.  535,  48  Am.  R. 
78  Pa.  St.  407,  21  Am.  R.  24.  185. 

2  Copenrath  v.  Kienby,  83  Ind.  18.  *  Hull  v.   Louth,  109  Ind.  315,  58 

3  Northwestern,    etc.    Ins.    Co.    v.  Am.  R.  405,  10  N.  E.  R.  270. 

90 


CH.  III.]  CAPACITY    OF    PARTIES.  [§   77. 

who  receives  no  benefit,  and  who  was  insane  at  the  time  of  in- 
dorsing-, be  held  by  a  subsequent  lonafide  holder.1 

§  77.  Return  of  consideration  necessary. —  It  follows 

as  a  corollary  of  the  rule  of  the  last  section,  that,  in  order  to 
disaffirm  a  fair  and  equitable  contract,  executed  by  one  who 
has  entered  into  it  in  good  faith  without  notice  of  the  insanity, 
the  representatives  of  the  insane  person  must  restore  to  such 
other  party  the  consideration  he  has  parted  with  in  pursuance 
of  the  contract.2  Such  restoration,  however,  is  not  necessary 
when  the  other  party  had  notice  of  the  insanity.3  As  is  said 
in  one  case:  "He  who  knowingly  deals  with  a  madman  takes 
the  risk  of  losing."  So,  speaking  of  the  claim  that  the  contract 
may  be  rescinded  without  restoring  the  consideration,  it  is  said 
by  the  court  in  New  Jersey:4  "This  is  good  law  where  there 
is  fraud  practiced  upon  one  who  is  known  at  the  time  to  be  in- 
sane, but  it  is  not  the  law  where  the  purchase  and  conveyance 
are  made  in  good  faith,  for  a  good  consideration,  and  without 
knowledge  of  the  insanity;  not  only  must  the  consideration  be 

1  Wirebach  v.  First  Nat.  Bank,  97  husband  was  not  permitted  to  re- 
Pa,  St.  548,  39  Am.  R  821;  McClain  scind,  as  the  other  party  could  not 
v.  Davis.  77  Ind.  419.  be  placed  in  statu  quo.]    Schaps  v. 

2  Eaton  v.  Eaton.  37  N.  J.  L.  108,  18  Lehner  (1893),  54  Minn.  208,  55  X.  W. 
Am.  R.  716;  Riggan  v.  Green,  80  R  911.  Contra,  where  nothing  has 
N.  C.  236.  30  Am.  R  77;  Pearson  v.  been  done  to  ratify  or  confirm  the 
Cox,  71  Tex.  246,  9  S.  W.  R.  154.  10  act.  Gibson  v.  Soper,  6  Gray  (Mass.), 
Am.  St.  R  740;  Fay  v.  Burditt,  81  279,  66  Am.  Dec.  414.  Limiting  Ar- 
Ind.  433,  42  Am.  R  142;  Boyer  v.  nold  v.  Richmond  Iron  Works,  1 
Berryman,  123  Ind.  451,  24  N.  E.  R  Gray  (Mass.).  434;  Hovey  v.  Hobson, 
249;  Gribben  v.  Maxwell.  34  Kan.  8,  53  Me.  451,  89  Am.  Dec.  705;  Seaver 
55  Am.  R.  233,  7  Pac.  R  584  [dis-  v.  Phelps,  11  Pick.  (Mass.)  304,  22 
approving  In  re  Desilver,  5  Rawle  Am.  Dec.  372;  Rogers  v.  Walker,  6 
(Pa.),  110,  28  Am.  Dec.  645;  Gibson  v.  Pa.  St.  371,  47  Am.  Dec.  470;  Wall  v. 
Soper,  6  Gray  (Mass.),  279,  66  Am.  Dec.  Hdl,  1  B.  Mon.  (Ky.)  290,  36  Am.  Dec. 
414;  Van  Deusen  v.  Sweet,  51  N.  Y.  578. 

378;  Dexter  v.  Hall,  82  U.  S.  (15  Wall.)  3  Crawford  v.  Scovell,  94  Pa.  St.  48, 

9J;  Allis  v.Billings,  6  Met.  (Mass.)  415,  39  Am.  R  766;   Henry  v.  Fine,  23 

39  Am.  Dec.  744;  Rusk  v.  Fenton,  14  Ark.  417;  Lincoln  v.  Buckmaster,  32 

Bush  (Ky.),  490,  29  Am.  R  413.     [In  Vt.  652;  Thrash  v.  Starbuck  (1896), 

this  case  the  insane  man's  wife  who  145  Ind.  673,  44  X.  E.  R.  543. 

had  conveyed  property  of  her  own  in  4  Eaton  v.  Eaton,  37  N.  J.  L  108,  18 

payment  for  that  received  by  her  Am.  R  716. 

91 


§§    78,    79.]  LAW    OF    SALE.  [BOOK    I. 

returned  in  such  cases  before  the  conveyance  will  be  avoided, 
but  courts  of  equity  and  courts  of  law  have  gone  further,  and 
held  that  where  persons  apparently  of  sound  mind,  and  not 
known  to  be  otherwise,  enter  into  a  contract  which  is  fair  and 
bona  fide,  and  which  is  executed  and  completed,  and  the  prop- 
erty, the  subject-matter  of  the  contract,  cannot  be  restored 
so  as  to  put  the  parties  in  statu  quo,  such  contract  cannot  be 
set  aside  either  by  the  alleged  lunatic  or  those  who  represent 
him." 

78.  Right  to  recover  property  from  third  person 

who  bought  it  in  good  faith. —  The  question  has  been  raised 
in  a  number  of  cases  whether  property  purchased  from  an  in- 
sane person  but  conveyed,  before  repudiation,  to  a  third  person 
who  bought  in  good  faith  and  for  a  valuable  consideration,  can 
be  recovered  from  the  latter,  even  upon  repayment  of  the  con- 
sideration. In  a  late  case l  of  the  sale  of  real  estate,  it  was  held 
that  the  title  of  such  a  bona  fide  purchaser  could  not  be  divested. 
"  The  presumption  of  the  law,"  said  the  court,  "is  in  favor  of 
sanity,  and  this  presumption  is  so  strong  that,  when  a  want  of 
it  is  claimed,  even  in  a  capital  case,  the  burden  is  on  the  defend- 
ant to  prove  it,  the  presumption  of  sanity  being  stronger  than 
the  presumption  of  innocence.  "When,  therefore,  a  purchaser 
sees  a  regular  chain  of  title,  formal  in  all  particulars,  upon  the 
registration  books,  executed  by  grantors  of  full  age  and  not 
feme  coverts,  he  has  a  right  to  rely  upon  the  presumption  of 
sanity;  and  if,  without  any  notice  or  matter  to  put  him  upon 
inquiry,  and  for  fair  value,  he  takes  a  deed,  he  should  be  pro- 
tected. Any  other  doctrine  would  place  all  titles  upon  the 
hazard." 

§  79.  But  in  other  cases  it  has  been  held  that  such  a 

purchaser  is  not  protected  and  that  the  property  may  be  re- 
covered from  him  although  the  consideration  is  not  restored. 

iOdom  v.  Riddick,  104  X.  C.  515. 10  bona  fide  purchaser  has  acquired  title 
S.  E.  R.  609,  17  Am.  St.  R.  686.  The  from  the  vendee  of  a  defrauded 
court  liken  the  case  to  one  where  a    vendor. 

92 


CH.  III.]  CAPACITY    OF    PARTIES.  .    -     . 

In  one  such  case1  the  court  said:  "The  grantee  whose  title  is 
thus  derived  must  rely  on  the  covenants  of  his  deed.  He  risks 
the  capacity  to  convey  of  all  through  whom  his  title  has  passed. 
The  right  of  infants  and  of  the  insane  alike  to  avoid  their  con- 
tracts is  an  absolute  and  a  paramount  right  superior  to  all 
equities  of  other  persons,  and  may  be  exercised  against  bona  fide 
purchasers  from  the  grantee." 

The  statement  of  the  rule  as  last  quoted  was  approved  in 
Indiana  in  a  case  in  which  a  bona  fide  mortgagee  sought  to 
enforce  a  mortgage  upon  lands  which  were  obtained  by  the 
mortgagor  from  an  insane  grantor  whose  deed  had  been  dulv 
recorded.  The  mortgagee  was  held  to  be  not  entitled  to  fore- 
close  against  the  insane  grantor.2 

§80.  Who  may  disaffirm. —  Where  the  right  to  disaffirm 
exists,  it  may  be  exercised  by  the  person  himself  when  he  has 
recovered  from  his  disability,  or  it  may  be  exercised  by  his 
guardian  or  committee,  or  by  his  personal  representatives  or 
heirs  after  his  death.3 

§  SI.  Creditor  may  not. —  But  a  creditor  of  the  insane 

person  cannot  avoid  a  conveyance  made  by  his  debtor  solely 

1  Hovey  v.  Hobson.  53  Me.  451,  89  bach  v.  First  National  Bank,  97  Pa. 

Am.  Dec.  705.    The  court  declare  the  St.  543.  39  Am.  R  821 
case  unlike  that  of  the   defrauded-       The  Indiana  court  also  liken  the 

vendor,  but  like  that  of  the  infant,  as  case  to  that  of  the  infant,  who  may 

to  which  it  is  held  that  a  bona  fide  recover  the  land  even  from  an  inno- 

purchaser  from  the  infant "s  vendee  cent  third  person.     Miles  v.  Linger- 

has  a  defeasible    title.     Harrod  v.  man,  24  In d.  3S5:  Richardson  v.  Pate, 

Myers.  21  Ark.  592,  76  Am  Dec.  409.  93  Ind.  423.  47  Am.  R  374:  Wiley  v. 

The  Maine  court,  however,  approve  "Wilson.  77  Ind.  596;  Law  v.  Long.  41 

Seaver  v.  Phelps,  11  Pick.  (Mass.)  304,  Ind.  58a 

22  Am.  Dec.  373,  and  Gibson  v.  Soper.        3  Northwestern,    etc.    Ins.    Co.    v. 

6  Gray  (Mass.).  279,  66  Am  Dec.  414,  Blankenship,  94  Ind.  535,  4S  Am.  R. 

which,  as  has  been  seen,  have  not  185:  Bunn  v.  Postell  (1899),  107  Ga. 

been  generally  followed  elsewhere,  490,  33  S.  E.  R.  707.     But  the  admin- 

-  Hull  v.  Louth.  109  Ind.  315,  10  X.  istrator  of  an  insane  grantee  cannot 

E.  R  270.  5S  Am.  R.  405.     See  to  like  avoid  a  deed  to  him  and  recover 

effect:  Rogers  v.  Blackwell.  49  Mich,  the  consideration  paid.    Campbell  v. 

192,  13  N.  W.  R,  512:  Northwestern.  Kuhn.  45  Mich.  513,  40  Am.  R  43      - 

etc.  Ins.  Co.  v.  Blankenship.  94  Ind.  N.  W.  R  523. 
535,  48  Am.  R  185.     See  also  Wire- 

93 


§§  82-84.]  LAW   OF    SALE.  [BOOK   I. 

because  the  latter  was  of  unsound  mind  when  he  made  it. 
"Nor  does  the  fact  that  the  grantee,  knowing  of  the  debt  and 
of  the  debtor's  mental  weakness,  took  advantage  of  such  weak- 
ness for  the  purpose  and  with  the  intention  of  thereby  defraud- 
ing the  creditor,  authorize  the  creditor  to  appeal  to  a  court  of 
equity  to  set  aside  such  deed,  unless  he  is  injured  thereby."  l 

§  82.  Sane  party  may  not. —  So  it  is  held  that,  though 

the  insane  party  or  his  representatives  may  disaffirm  the  con- 
tract on  the  ground  of  the  insanity,  the  sane  party  to  the  con- 
tract may  not,  on  that  ground,  disaffirm  it  while  the  insane 
party  or  his  representatives  are  ready  and  willing  to  perform 
and  seek  to  maintain  the  contract  as  valid.2 

§  83.  Affirmance  of  the  contract. —  The  former  insane  per- 
son may  also,  after  recovering  from  his  disability  either  per- 
manently or  temporarily,3  ratify  and  confirm  the  contract  made 
during  his  disability;  and,  when  he  acts  intelligently,  he  may 
do  this  expressly  or  by  implication,  and  either  tacitly,  as  where 
he  neglects  to  repudiate  within  the  proper  time,  or  actively,  as 
where  he  insists  upon  and  enforces  performance  of  the  con- 
tract by  the  other  party.4  The  representatives  of  the  insane 
person  may  also  ratify  by  enforcing  the  contract  against  the 
sane  party,  who  may  not  set  up  the  disability  as  a  defense  to 
himself.5 

§84.  Contract  for  necessaries  binding. —  "Ever  since  the 
case  of  Stiles  v.  West" 6  said  Chief  Justice  Gibson,  "  it  has  been 
held  that  the  executed  contract  of  a  non  compos  mentis  for  nec- 

1  Brumbaugh  v.  Richcreek,  127  Ind.  acting  under  the  contract  and  under- 
240,  26  N.  E.  R  664,  22  Am.  St.  R.  649.  standingly  availing   himself  of  its 

2  Allen  v.  Berryhill,  27  Iowa,  534,  1  provisions  in  his  favor.  Bond  v. 
Am.  R.  309.  *  Bond  (1863),  7  Allen  (Mass.),  1.  And, 

3  As  to  ratification  during  lucid  generally,  the  ratification  after  res- 
interval,  see  Blakeley  v.  Blakeley  toration  to  sanity  must  appear  to  be 
(1881),  33  N.  J.  Eq.  502.  the    intelligent    act    of  the    party. 

4  Arnold  v.  Richmond  Iron  Works  Beasley  v.  Beasley  (1899),  180  111.  163, 
(1854),  1  Gray  (Mass.),  434.     Accept-  54  N.  E.  R  187. 

ance  of  the  benefits,  to  constitute  a        5  Allen  v.  Berryhill  (1869),  27  Iowa, 
ratification,  must  be  the  intelligent    534,  1  Am.  R.  309. 
act  of  the  party,  knowing  that  he  is        6  Cited  in  Manly  v.  Scott,  1  Sid.  109. 

94 


CH.  III.]  CAPACITY    OF    PARTIES.  [§  85. 

essaries,  bona  fide  supplied,  stands  on  the  footing  of  an  infant's 
contract  for  necessaries.  In  Baxter  v.  The  Earl  of  Portsmouth^ 
it  was  said  that  the  word  '  necessaries '  is  not  to  be  restricted  to 
articles  of  the  first  necessity,  but  that  it  includes  everything 
proper  for  the  person's  condition,  and  it  was  determined  that 
to  hire  carriages  to  a  nobleman  who,  though  actually  insane, 
voted  in  parliament  and  went  about  as  other  men  do,  carried 
with  it  no  mark  of  imposition."  The  court,  therefore,  held  the 
insane  person's  estate  chargeable  for  board,  washing  and  main- 
tenance furnished  to  him.2  In  many  other  cases  the  same  rule 
has  been  applied  and  the  estate  of  the  incompetent  has  been 
held  chargeable,  like  an  infant's,  for  the  reasonable  value  of 
those  things  which  were  suitable  and  necessary  for  one  in  his 
condition  and  which  were  furnished  to  him  in  good  faith.3 

Within  the  class  of  necessaries  in  addition  to  sustenance,  shel- 
ter and  raiment,  fall  medical  services,  nursing,  and  a  guard  to 
protect  him  against  self-injury ; 4  services  and  expenses  for  the 
preservation  of  his  estate,5  and,  where  he  was  wealthy,  the 
court  held  that  pleasures  and  even  luxuries  should  be  allowed.6 
Necessaries  furnished  to  the  lunatic's  wife  are  likewise  a  proper 
charge  against  him.7 

§85.  Liability  limited  to  value  received. —  The  lia- 
bility of  the  lunatic,  however,  is  limited  to  the  value  of  that 
only  of  which  he  has  had  the  actual  use  and  benefit,  and  he 
cannot  therefore  be  held  for  other  things  procured  ostensibly 
for  him  by  a  self-constituted  agent,  but  appropriated  by  the 
latter  to  his  own  benefit.8 

i  2  Car.  &  P.  178,  5  B.  &  C.  170.  4  Richardson    v.  Strong,   13    Ired. 

2  La  Rue  v.  Gilkyson,  4  Pa.  St.  375,    (N.  C.)  L.  106,  55  Am.  Dec.  430. 

45  Am.  Dec.  700.  5  Williams  v.  Wentworth,  5  Beav. 

3  Ex    parte  North  ington,   37  Ala.     (Eng.)  325. 

496,  79  Am.  Dec.  67;  Tally  v.  Tally,  2  6  Kendall  v.  May,  10  Allen  (Mass.), 

Dev.  &  B.  Eq.  (N.  C.)  385, 34  Am.  Dec.  62.     See  also  In  re  Perrse,  3  Molloy, 

407;  Young  v.  Stevens,  48  N.  H.  133,  94. 

97  Am.  Dec.  592;  Stannard  v.  Burns  7  Pearl  v.  McDowell,  3  J.  J.  Marsh. 

(1891),   63   Vt.   244,  22  Atl.   R.   460;  (Ky.)  658.  20  Am.  Dec.  199. 

Sawyer  v.  Lufkin,  56  Me.  308;  Mc-  sSurles  v.  Pipkin,  69  N.  C.  5ia 
Cormick  v.  Littler,  85  111.  62;  Ken- 
dall v.  May,  10  Allen  (Mass.),  59. 

95 


§§  86-88.]  LAW    OF    SALE.  [BOOK   I. 

h.  Incompetency  by  Eeason  of  Drunkenness. 

§86.  Contracts  of  drunken  persons.  — The  contracts  of 
drunken  persons  stand  upon  much  the  same  ground  as  the  con- 
tracts of  the  insane.  Intoxication  will  avoid  a  contract  when, 
and,  usually,  only  when,  it  was  so  extreme  that  the  party  sought 
to  be  charged  was  incapable  of  clearly  perceiving  and  assent- 
ing to  the  contract.1  Where  it  is  of  this  degree,  the  other  party 
need  not  have  participated  in  causing  it;2  but  where  he  did,  a 
much  less  degree  will  suffice  to  invalidate  the  contract.3 

§  87.  Contract  voidable  and  not  void.— The  contract 

of  the  drunken  person  is  voidable  only  and  not  void,4  and  if  he 
would  disaffirm  it  he  must  make  restitution  of  what  he  has 
received  under  it.5  After  he  becomes  sober  he  may  likewise 
affirm  it,6  and  affirmance  will  be  presumed  where,  with  knowl- 
edge, he  retains  the  consideration.7 

§  88.  Bona  fide  holders. —  Complete  incapacity  result- 
ing from  drunkenness  should,  it  has  been  said,  render  his  nego- 

1  Wade  v.  Colvert.  2  Mill  (S.  C),  27,  N.  J.  Eq.  485;  French  v.  French,  8 
12  Am.  Dec.  652;  French  v.  French,  Ohio,  214,  31  Am.  Dec.  441;  Noel  v. 
8  Ohio,  214,  31  Am.  Dec.  441;  Bush  Karper,  53  Pa.  St.  97 ;  Dulany  v.  Green, 
v.  Breinig,  113  Pa.  St.  310,  6  Atl.  R.  4  Harr.  (Del.)  285;  Cummings  v. 
86,  57  Am.  R.  469;  Wright  v.  Fisher,  Henry,  10  Ind.  109;  Cory  v.  Cory,  1 
65  Mich.  279,  32  N.  W.  R.  605,  8  Am.  Ves.  Sr.  (Eng.)  19;  Pitt  v.  Smith,  3 
St.  R.  886;  Bates  v.  Ball,  72  111.  108;  Camp.  33;  Newell  v.  Fisher,  11  S.  & 
Caulkins  v.  Fry,  35  Conn.  170.  M.  (Miss.)  431,  49  Am.  Dec.  66;  Reyn- 

2  Wigglesworth  v.  Steers,  1  H.  &  M.  olds  v.  Waller,  1  Wash.  (Va.)  164; 
(Va.)  70,  3  Am.  Dec.  603.  Menkins  v.  Lightner,  18  111.  282;  Tay- 

3  Willcox  v.  Jackson,  51  Iowa,  208,  lor  v.  Patrick,  1  Bibb  (Ky.),  168; 
IN.  W.  R.  513;  Hotchkiss  v.  Fortson,  Broadwater  v.  Darne,  10  Mo.  277; 
7  Yerg.  (Tenn.)  67;  White  v.  Cox,  3  Hutchinson  v.  Brown,  1  Clarke 
Hay  w.  (Tenn.)  79;  Henry  v.  Ritenour,  (N.  Y.),  Ch.  408. 

31  Ind.  136.  6  Joest  v.  Williams,  42  Ind.  565,  13 

4  Carpenter  v.  Rodgers,  61  Mich.  Am.  R.  377;  McGuire  v.  Callahan,  19 
384,  28  N.  W.  R.  156,  1  Am.  St.  R.  595,     Ind.  128. 

citing  Matthews  v.  Baxter,  L.  R.  8  6  Carpenter  v.  Rodgers,  supra,  and 
Ex.  (Eng.)  132;  Caulkins  v.  Fry,  35    cases  cited. 

Conn.  170;  Foss  v.  Hildreth,  10  Allen        7  Per  Alderson,  B.,  in  Gore  v.  Gib- 
(Mass.),  76;  Van  Wyck  v.  Brasher,  81     son,  13  Mees.  &  W.  623. 
N.  Y.  260;  Warnock  v.  Campbell,  25 

96 


CII.  in.]  CAPACITY    OF    PARTIES.  [§§  89-91. 

tiable  instrument  void,1  even  in  the  hands  of  a  lonafide  holder, 
though  the  contrary  has  been  held ; 2  and  certainly  nothing  less 
than  entire  incapacity  ought  to  affect  the  lonafide  holder  in  the 
absence  of  such  fraud  on  the  maker  as  amounts  to  illegality.3 

§89.  Habitual  drunkards.— The  contract  of  even  the  ha- 
bitual drunkard  is  good  if  made  during  a  sober  interval.4 
But  — 

§  90,  Partial  intoxication  or  weakness  coupled  with  fraud. 

"Where,  through  long-continued  indulgence,  the  mind  has  be- 
come weakened,  or  where,  though  the  person  is  not  completely 
incapacitated  by  present  drunkenness,  he  is  still  to  some  degree 
incompetent,  and  the  other  party  knew  of  his  condition,  the 
transaction  must  appear  to  have  been  fair  and  open,5  and  fraud 
or  overreaching  will,  of  course,  avoid  it.6 

§91.  Drunkard  under  guardianship.— If,  because  of  his 
incapacity,  the  habitual  drunkard  has  been  placed  under  legal 
guardianship,  and  the  control  of  his  estate  has  been  removed 
from  him,  contracts  made  by  him  thereafter  will  be  of  no  ef- 
fect.7 

1  Daniel  on  Neg.  Inst.,  §  210.  sumption  of  fraud  arises  which  must 

2  State  Bank  v.  McCoy,  69  Pa.  St.  be  countervailed  by  evidence  of  a 
204,  8  Am.  R.  246;  McSparran  v.  fair  consideration,  and  fair  and  hon- 
Neely,  91  Pa.  St.  17.  est  dealing  on  the  part  of  him  who 

3  Miller  v.  Finley,  26  Mich.  249,  12  claims  the  note  as  a  valid  contract. 
Am.  R.  306.  Hale  v.  Brown,  11  Ala.  87." 

*  Ritter's  Appeal,  59  Pa.  St.  9.     See  6  Hotchkiss    v.   Fortson,    7    Yerg. 

also  Van  Wyck  v.  Brasher,  81  N.  Y.  (Tenn.)  67;  White  v.  Cox,  3  Hayw. 

260.  (Tenn.)  79;  Calloway  v.  Witherspoon, 

5  In  Holland  v.  Barnes,  53  Ala.  83,  5  Ired.    (N.   C.)   Eq.   128;   Cruise  v. 

25  Am.  R.  595,  Brickell,  C.  J.,  says:  Christopher,  5  Dana  (Ky.),  181;  Henry 

"  When  evidence  is  given  that  on  an  v.  Ritenour,  31  Ind.  136;  Mansfield  v. 

insufficient  consideration  a  promis-  Watson,  2  Iowa,  111;  Murray  v.  Car- 

sory  note  has  been  obtained  from  a  lin,  67  111.  286. 

person  enfeebled  in  body  and  mind,  7See  ante,  §  72;  Lynch  v.  Dodge, 

by  disease  and  long-continued  drunk-  130  Mass.  458;  Manson  v.  Felton,  13 

enness,  and  who  at  its  execution  is  Pick.  (Mass.)  206. 
under  the  influence  of  liquor,  a  pre- 
7                                               97 


§§  92,  93.]  LAW    OF    SALE.  [BOOK    I. 

c.  Incompetency  of  Spendthrifts,  etc. 

§  92.  Spendthrifts  and  other  persons  under  guardianship. 

Provision  is  usually  made  by  statute  for  the  appointment  of 
guardians  for  such  persons  as  by  drinking,  gaming,  debauch- 
ery or  incompetence  are  likely  to  squander  their  estates  and 
become  charges  upon  the  public.  The  effect  of  proceedings 
resulting  in  the  appointment  of  a  guardian  is  usually  to  take 
away  from  the  ward,  during  guardianship,  all  general  capacity 
to  enter  into  contracts,  though,  as  in  the  case  of  insane  per- 
sons and  infants,  he  may  bind  himself  for  necessaries.1 

2.  Legal  Incompetency. 

§  93.  In  general. —  In  addition  to  the  various  kinds  of  in- 
capacity which  have  been  denominated  natural,  are  certain 
others  which  exist  not  so  much  because  of  any  inherent  or 
natural  incompetency,  but  rather  as  the  result  of  express  rules 
of  law  declared  for  the  purpose  not  only  of  guarding  against 
supposed  weakness  or  exposure  to  improper  influences,  but 
also  of  subserving  certain  ends  approved  by  the  general  pol- 
icy of  the  law. 

Of  these  kinds  of  incapacity,  the  most  important  are  those 
of  the  infant  and  the  married  woman.  Corporations  and  other 
more  or  less  similar  bodies  are  also  subject  to  legal  incapacity. 

Of  the  incapacity  of  the  infant,  it  is  to  be  said  that  his  in- 
competency may  be  the  result  of  both  classes  of  causes.  Dur- 
ing his  tender  years  he  is  under  a  natural  incapacity,  but  as 
he  approaches  more  and  more  nearly  to  the  period  of  his  ma- 
jority —  a  period  arbitrarily  established  —  he  becomes  less  and 
less  subject  to  any  natural  incapacity  and  is  subject  only  to 
that  which  the  law  imposes  upon  him.  He  may  thus  be  act- 
ually as  competent  to  act  in  his  own  behalf  on  the  day  before 
he  attains  his  majority  as  on  the  day  after;  but  the  law  makes 
no  such  distinction. 

The  same  may  be  said  of  the  married  woman.     She  may 

iManson  v.  Felton,  13  Pick.  (Mass.)  508,  93  Am.  Deo.  117;  Lynch  v. 
206;  Chandler  v.  Simmons,  97  Mass.    Dodge,  130  Mass.  459. 

98 


€H.  III.]  CAPACITY    OF    PARTIES.  [§§  O-A-Olj. 

have  as  much  actual  capacity  to  make  contracts  the  day  after 
her  marriage  as  she  had  the  day  before;  but  here  again  the 
common  law  imposes  an  arbitrary  bar. 

a.  Of  the  Incapacity  of  the  Infant. 

§  94:.  In  general. —  The  question  of  the  general  contractual 
incapacity  of  the  infant  is  one  foreign  to  the  present  work, 
and  the  matter  of  his  particular  incapacity  to  buy  and  sell 
chattels  might  also,  perhaps,  be  properly  excluded  from  con- 
sideration herein;  but,  in  the  belief  that  it  may  subserve  a  pur- 
pose sufficiently  useful  to  justify  the  space  consumed,  a  gen- 
eral view  of  this  narrower  field  will  be  attempted. 

§  95.  Infant's  contracts  are  voidable  aud  not  void. —  It  is 

now  well  settled,  as  a  general  rule,  that  the  contracts  of  an  in- 
fant are  voidable  merely  and  not  void;  and  this  rule  applies  as 
well  to  his  deeds  and  conveyances  of  his  real  estate1  as  to  his 
sales,  mortgages  and  assignments  of  his  personal  property.2 

Without  attempting  to  go  at  large  into  all  the  matters  which 
may  be  suggested  by  this  discussion,  a  few  points  may  be 
briefly  touched  upon.     Thus  — 

§  96.  What  meant  by  voidable. —  With  respect  of  void- 
able contracts  generally,  it  is  ordinarily  true  that  they  are  valid 
till  avoided,  and  not  void  till  ratified.     With  respect  of  the 

i  Cole  v.  Pennoyer,  14  111.  158;  Keil  Va.  65,  46  Am.  R.  709;  Birch  v.  Lin- 

v.  Healey,  84  111.  104,  25  Am.  R.  434;  ton,  78  Va.  584, 49  Am.  R.  381;  Gilles- 

Green  v.  Wilding,  59  Iowa,  679.  13  pie  v.  Bailey,  12  W.  Va.  70,  29  Am. 

N.  W.  R.  761,  44  Am.  R.  696;  Philips  R.  445;  Logan  v.  Gardner,  136  Pa.  St. 

v.  Green,  3  A.  K.  Marsh.  (Ky.)  7,  588,  20  Am.  St.  R.  939,  20  Atl.  R.  625. 
13  Am.  Deo.  124;    Breckenridge  v.        2  Holmes  v.  Rice,  45  Mich.  142,  7 

Grmsby,  1  J.  J.  Marsh.  (Ky.)  236,  19  N.  W.  R.  772;  Williams  v.  Brown,  34 

Am.  Dec.  71;    Davis  v.  Dudley,  70  Me.  594;    Kingman  v.  Perkins,  105 

Me.  236,  35  Am.  R.  318;    Youse   v.  Mass.  Ill;    Cogley  v.   Cushman,   16 

Norcoms,  12  Mo.  549,  51    Am.  Dec.  Minn.  397;  Corey  v.  Burton,  32  Mich. 

175;  Bool  v.  Mix,  17  Wend.  (N.  Y.)  30;  Osburn  v.  Farr,  42  Mich.  134,3 

119,  31  Am.  Dec.  285;   Wheaton  v.  N.  W.  R.  299;  Rice  v.  Boyer,  108  Ind. 

East,  5  Yerg.  (Tenn.)  41,  26  Am.  Dec.  472,  9  N.  E.  R.  420,  58  Am.  R.  53; 

251;  Bigelow  v.  Kinney,  3  Vt.  353,  21  Soper  v.  Fry,  37  Mich.  236. 
Am.  Dec.  589;  Wilson  v.  Branch,  77 

99 


§  97.]  LAW    OF    SALE.  [BOOK    I. 

contracts  of  infants,  the  word  seems  not  to  have  in  all  cases- 
the  same  meaning.  Where  the  contract  made  by  the  infant 
has  been  executed  on  his  part,  that  is,  where  he  has  parted  with 
something  which  he  was  to  part  with  under  the  contract,  it  is 
said  that  the  contract  is  binding  until  it  is  avoided  by  the  in- 
fant, by  words  or  conduct  which  show  that  he  refuses  longer 
to  be  bound  by  it.  "  But  when  it  is  said  that  the  executory 
contract  of  an  infant  is  voidable,  the  idea  represented  is  that 
the  contract  is  susceptible  of  confirmation  or  avoidance  by  the 
promisor,  though  it  is  not  binding  until  it  is  ratified." l  This 
distinction  between  the  executed  and  the  executory  contract 
of  the  infant  has  been  criticised.  Thus  it  is  said  in  one  place:  - 
"  This  is  a  senseless  and  erroneous  distinction.-  Executory  con- 
tracts of  infauts  are  no  more  invalid  than  executed  contracts. 
Both  are  binding  until  disaffirmed.  No  one  would  contend 
that  infants'  executory  contracts  could  be  disregarded  as  nulli- 
ties by  the  adult  contracting  parties,  or  by  third  persons,  until 
they  had  been  ratified;  yet  this  is  precisely  what  the  doctrine 
leads  to.  It  may  be  that  a  ratification  will  result  from  less 
positive  acts  or  conduct  in  case  of  executed  contracts  than  in 
case  of  executory;  but  this  does  not  prove  that  the  one  class 
has  a  greater  binding  effect  than  the  other."  It  must  be  con- 
ceded,  however,  that  the  distinction  has  found  quite  a  firm 
lodgment  in  our  law.3 

§  97.  Who  may  avoid. —  The  privilege  of  infancy  is  a 

personal  one,  which  can  be  availed  of  only  by  the  infant  him- 
self and  those  who  represent  him  personally.4  The  other  party 
to  the  contract  cannot  insist  upon  this  disabilit}7,  if  the  infant 

i  Minock  v.   Shortridge  (1870),   21  case  of  Nichols  &  Shepard  Co.  v.  Sny- 

Mich.  304:  Edgerly  v.  Shaw  (1852),  der  (1900),  78  Minn.  502,  81  N.  W.  R. 

25  N.  H.  514,  57  Am.  Dec.  349;  State  516. 

v.  Plaisted  (1862),  43  N.  H.  413;  Mor-  *  Oliver  v.  Houdlet  (1816),  13  Mass. 

ton  v.  Steward  (1879),  5  111.  App.  533;  237,  7  Am.  Dec.  134;  Cannon  v.  Als- 

Lynch  v.  Johnson  (1896),  109  Mich,  bury  (1817),  1  A.  K.  Marsh.  (Ky.)  76, 

640,  67  N.  W.  R.  908.  10  Am.  Dec.  709;  Patterson  v.  Lip- 

2  Note  to  Craig  v.  Van  Bebber,  18  pincott  (1885),  47  N.  J.  L.  457,  54  Am. 
Am.  St.  R.  579.  R.  178. 

3  See,  for  example,  the  very  late 

100 


CH.  III.]  CAPACITY    OF    PARTIES.  [§§  98,  90. 

doss  not  see  fit  to  raise  it.1  Xeither  can  a  stranger  to  the  con- 
tract take  advantage  of  it.2  The  infant's  creditors,  moreover, 
are  precluded,3  and  so  is  his  assignee  in  bankruptcy  or  insolv- 
ency.4 As  stated  in  one  case,5  "  Yoidable  acts  by  an  infant 
can  be  avoided  by  none  but  himself  or  his  privies  in  blood,  and 
not  by  privies  in  estate;  and  this  right  of  avoidance  is  not  as- 
signable." 

The  infant's  heir,6  however,  or  guardian,7  or  personal  repre- 
sentative,8 may  avoid  the  contract  if  the  time  has  not  expired. 

§  98.  When  avoided. —  With  respect  of  the  time  at 

which  the  infant's  contracts  may  be  avoided,  a  distinction  is 
made  between  his  conveyances  of  realty  and  his  contracts  re- 
specting personalty.  The  former  may  usually  be  effectively 
avoided  only  after  he  becomes  of  age;  but  the  latter,  by  the 
weight  of  authority,  may  be  avoided  either  during  his  minority 
or  within  a  reasonable  period  thereafter.9 

§  99.  When  ratify. —  While  the  infant  may  thus  dis- 
affirm during  infancy,  he  cannot,  for  obvious  reasons,  effectu- 
ally ratify  until  he  becomes  of  age;  for  the  ratification  is  the 

1  Holt  v.  "Ward  Clarencieux  (1732),  however,  then  his  privies  in  estate 
2  Strange,  937;  Monaghan  v.  Insur-  may  avail  themselves  of  such  avoid- 
ance Co.  (1884),  53  Mich.  238;  Hunt  ance.  Shrock  v.  Crowl  (1882),  83  Ind. 
v.  Peake  (1826),  5  Cow.  (N.  Y.)  475,  15  243. 

Am.  Dec.  475;  Stiff  v.  Keith  (1887),  « Illinois  Land  Co.  v.  Bonner  (1874), 

143  Mass.  224.  75  111.  315;  Veal  v.  Fortson  (1882),  57 

-'Board  of  Trustees  v.   Anderson  Tex.  482. 

(1878),  63  Ind.  367,  30  Am.   R.   224;  1  Compare  Oliver  v.  Houdlet  (1816), 

Holmes  v.  Rice  (1881),  45  Mich.  142,  13  Mass.  237,  7  Am.  Dec.  134;  Chand- 

7  N.  W.  R  772;  Soper  v.  Fry  (1877),  ler  v.  Simmons  (1867),  97  Mass.  508, 

37  Mich.  236.  93  Am.  Dec.  117. 

3  Kingman  v.  Perkins  (1870),  105  STillinghast  v.  Holbrook  (1862),  7 
Mass.  Ill;  Yates  v.  Lyon  (1874),  61  R.  I.  230;  Shropshire  v.  Burns  (1871), 
N.  Y.  344.  46  Ala.  108. 

4  Mansfield  v.  Gordon  (1887),  144  » House  v.  Alexander  (1885),  105 
Mass.  168,  10  N.  E.  R  773.  Ind.  109, 55  Am.  R  189;  Rice  v.  Boyer 

5  Austin  v.  Charlestown  Seminary  (1886),  108  Ind.  472,  58  Am.  R.  53; 
(1844),  8  Met.  (Mass.)  196.  Miller  v.  Smith  (1879),  26  Minn.  248, 

After  the  contract  has  been  duly  37  Am.  R.  407 ;  Stafford  v.  Roof  (1827), 
avoided  by  the    infant    personally,     9  Cow.  (N.  Y.)  626. 

"  101 


§§  100-102.]  LAW    OF    SALE.  [BOOK   I. 

act  which  is  to  give  the  final  validity  to  the  act  and  requires 
full  capacity.  Otherwise  he  might  claim,  to  disaffirm  his  ratifi- 
cation. 

§  100.  How  much  to  be  ratified. —  If  the  infant  ratifies 

or  repudiates  at  all,  he  must  in  general  deal  with  the  whole 
contract,  and  not  with  inseparable  parts  of  it.1  He  clearly  may 
not,  after  he  becomes  of  age,  so  ratify  a  part  as  to  secure  the 
benefits  of  the  contract  while  he  repudiates  its  liabilities. 

§  101.  Effect  of  ratification. —  The  ordinary  effect  of 

ratification  is  that  the  contract  then  becomes  binding  from  the 
beginning,  and  not  merely  from  the  date  of  ratification.2  When 
once  effectually  ratified,  the  contract  cannot  be  subsequently 
disaffirmed.3 

§  102.  Knowledge  of  non-liability. —  Whether  the  acts 

of  the  former  infant  relied  upon  as  constituting  ratification 
must  have  been  clone  with  knowledge  that  he  was  not  legally 
liable  upon  the  contract,  is  a  question  upon  which  the  author- 
ities are  in  conflict;  with  the  weight  of  reason  and  modern 
authority  to  the  effect  that,  in  the  absence  of  fraud  or  unfair 
advantage  on  the  part  of  the  other  party,  such  knowledge  is 
not  necessary.4 

i  Biederman  v.  O'Connor  (1886),  117  may  make  his  ratification  partial  or 

III.  493:  Langdon  v.  Clayson  (1889),  conditional;  in  which  event  it  will 

75  Mich.  204;  Uecker  v.  Koehn  (1887),  be    binding    only    according  to  its 

21  Neb.  559,  59  Am.  R.  849;  Lynde  v.  terms. 

Budd  (1830),  2  Paige  (N.  Y.),  Ch.  191,        3  See  Hastings  v.  Dollarhide  (1864), 

21  Am.  Dec.  84;  Bigelow  v.  Kinney  24  Cal.  195;  Voltz  v.  Voltz  (1883),  75 

(1830),  3  Vt.   353.  21  Am.  Dec.  589;  Ala.  555. 

American    Freehold    Mtg.     Co.     v.        4  Mr.  Greenleaf  (Evidence,  voL  II, 

Dykes  (1895),  111  Ala.  178,  56  Am.  St.  §  367)  lays  down  the  rule  that  such 

R.  38.  knowledge  is  necessary,  and  his  state- 

2Minock  v.   Shortridge  (1870),   21  ment  has  been  often  quoted,  as,  e.  g.r 

Mich.  304;  Hall  v.  Jones  (1863),   21  in  Turner  v.  Gaither  (1880),    83    N. 

Md.  439;  Cheshire  v.  Barrett  (1827),  C.   357,    35    Am.   R.    574    [see    also 

4  McCord  (S.  C),  241, 17  Am.  Dec.  735.  Hinely  v.  Margaritz  (1846),  3  Pa.  St. 

But  in  Minock  v.  Shortridge,  supra,  428J ;  but  the  more  modern  cases  are 

in  reference  to  executory  contracts,  the  other  way.     Anderson  v.  Soward 

the  court  say  that  the  former  infant  (1883),  40  Ohio  St.  325,  48  Am.  R.  687  ^ 

102 


CH.  III.]  CAPACITY    OF    PARTIES.  [§§  103-105. 

§103.  Consideration  for  the  ratification. —  No  new- 
consideration  for  the  ratification  is  necessary.1  The  contract, 
by  the  hypothesis,  was  only  voidable,  not  void ;  the  ratifica- 
tion does  not  amount  to  the  making  of  a  new  contract,  but  is 
simply  indicative  of  a  final  intention  to  be  bound  by  one  al- 
ready made  upon  a  sufficient  consideration. 

§  104.  Ratification,  how  effected. —  Unless  required  by 

statute,  as  in  some  cases  where  written  ratification  is  pre- 
scribed, no  particular  form  of  ratifying  is  necessary.  It  may 
be  either  express  or  implied.  Ordinarily,  any  words  or  con- 
duct clearly  and  unequivocally  indicating  an  intention  to  be 
bound  by  the  contract  is  sufficient.  Where  the  contract  has 
been  so  far  executed  that  the  infant  must  be  the  moving  party, 
a  failure  to  disaffirm  within  a  reasonable  time  suffices.  Where 
the  infant  has  received  performance  by  the  other  party,  and 
after  majority  deals  with  the  thing  received  as  being  the  owner 
of  it,  or  where  after  majority  he  demands  or  accepts  perform- 
ance by  the  other  party,  as  on  the  basis  of  a  subsisting  con- 
tract, there  is  strong  evidence  of  ratification. 

§  105.  .  On  the  other  hand,  where  the  contract  is  wholly 

executory  so  far  as  the  infant  is  concerned  —  where  the  pur- 
pose is  to  compel  the  former  infant  to  do  something  merely  by 
reason  of  his  agreement  made  during  infancy,  especially  an 
agreement  to  pay  money, —  and  ratification  since  majority  is 
relied  upon  to  defeat  his  plea  of  infancy,  very  clear  evidence 
of  ratification  is  required.  "  To  sustain  an  action  against  a 
person  of  full  age,  or  a  promise  made  by  him  when  an  infant," 
it  is  said  in  one  case,2  "  there  must  be  a  complete  ratification, 
either  by  a  new  promise  to  pay,  or  by  positive  acts  of  the  in- 
dividual, after  he  has  been  of  age  a  reasonable  time,  in  favor 

Clark  v.  Van  Court  (1884),  100  Ind.  553;  Jefford  v.  Ringgold  (1844),  6  Ala. 

113,  50  Am.  R.  774;  American  Mort-  544:  American  Freehold  Mtg.  Co.  v. 

gage  Co.  v.  Wright  (1893),  101  Ala.  Dykes  (1895),  111  Ala.  178,  20  S.  R. 

658,  14  S.  R.  399;    Bestor  v.  Hickey  136,  56  Am.  St.  R.  38. 
(1898),  71  Conn.  181,  41  Atl.  R.  555.  2  Tibbets  v.  Garrish  (1852),  25  N.  H. 

1  Conklin  v.  Ogborn  (1856),  7  Ind.  41,  57  Am.  Dec.  307. 

103 


§§  100,  107.] 


LAW    OF    SALE. 


[book  I. 


of  his  contract,  which  are  of  a  character  to  constitute  as  per- 
fect evidence  of  a  ratification  as  an  express  and  unequivocal 
promise."  "While  this  may  seem  a  strong  statement  of  the  rule, 
it  is  fairly  representative  of  the  authorities.1 

Passing  now  to  the  particular  questions  in  hand,  and  apply- 
ing these  general  principles  here  touched  upon,  it  may  be  no- 
ticed, first,  that — ■ 

§106.  Sale  or  exchange  by  infants  is  voidable.— An  in- 
fant's sale  or  exchange  of  his  personal  property,  though  accom- 
panied by  a  delivery  of  the  possession  thereof,  is  voidable  at  the 
infant's  election.2 

§  107. When  may  be  avoided. —  And,  though  there  are 

some  rulings  to  the  contrary,3  the  executed  sale  or  exchange, 
at  least  when  made  without  fraud  on  his  part,  may,  according 
to  the  great  weight  of  authority,  be  avoided  by  him  during  his 
minority,4  as  well  as  within  a  reasonable  time  after  he  becomes 
of  a^e.5 


i  See  also  Catlin  v.  Haddox  (1882), 
49  Conn.  492,  44  Am.  R.  249;  Turner 
v.  Gaither  (1880),  83  N.  C.  357,  35  Am. 
R.  574;  Proctor  v.  Sears  (1862),  4 
Allen  (Mass.),  95;  Baker  v,  Kennett 
(1873),  54  Mo.  82;  Lynch  v.  Johnson 
(1896),  109  Mich.  640,  67  N.  W.  R  908; 
Nichols  &  Shepard  Co.  v.  Snyder 
(1900),  78  Minn.  502,  81  N.  W.  R.  516. 

2To\vle  v.  Dresser,  73  Me.  252;  Staf- 
ford v.  Roof,  9  Cow.  (N.  Y.)  626;  Bool 
v.  Mix,  17  Wend.  (N.  Y.)  119,  31  Am. 
Dec.  285;  Carr  v.  Clough,  26  N.  H. 
280,59  Am.  Dec. 345; State  v.Plaisted, 
43  N.  H.  413;  Chapin  v.  Shafer,  49 
N.  Y.  407;  Cogley  v.  Cushman,  16 
Minn.  397;  -Miller  v.  Smith,  26  Minn. 
248,  37  Am.  R  407. 

» As  in  Roof  v.  Stafford,  7  Cow. 
(N.  Y.)  179,  reversed  in  Staff  or.  1  v. 
Roof,  9  Cow.  626;  Dunton  v.  Brown, 


31  Mich.  182  (of  which  it  is  said  in 
note  to  18  Am.  St.  R  602,  that  the 
rule  "is  not  correct  on  principle  and 
has  been  decided  to  the  contrary." 
Adams  v.  Beall,  67  Md.  53,  8  Atl.  R 
664,  1  Am.  St.  R  379);  Boody  v.  Mo 
Kenney,  23  Me.  525.  Contra,  Towle 
v.  Dresser,  73  Me.  252. 

4  As  is  said  in  Towle  v.  Dresser,  73 
Me.  252,  "By  reason  of  the  transi- 
tory nature  of  personal  property,  to 
withhold  this  right  from  the  infant, 
perhaps  for  a  term  of  years,  until  ho 
became  of  age,  would,  in  many  cases, 
be  to  make  it  utterly  valueless/'  To 
like  effect:  Chapin  v.  Shafer,  4!)  X.  V. 
407;  Rice  v.  Boyer,  108  Ind.  472,  9  N. 
K.  R.  420,  58  Am.  R  53  (citing  Briggs 
v.  McCabe,  27  Ind.  327;  Indianapolis, 
etc.  Co.  v.  Wilcox,  59  Ind.  429;  Clark 
v.  Van  Court,  100  Ind.  113,50  Am.  R 


&Beardsley  v.  Hotchkiss,  96  N.  Y.     (Tenn.)    469;    Chapin   v.   Shafer,   49 
201;    Summers    v.   Wilson,  2    Cold.    N.  Y.  407. 

104 


en.  in.] 


CAPACITY    OF    PARTIES. 


[§§  108,  100. 


§108.  How  disaffirmed. —  The  disaffirmance  maybe 

by  express  notice  to  that  effect,1  by  action  to  recover  the  prop- 
ert}7,2  or,  particularly  where  the  property  has  not  yet  been  de- 
livered, by  some  act  showing  unequivocally  a  determination 
not  to  be  bound  by  it,  as  by  an  absolute  sale  to  another  person.3 


109. 


Necessity  of  restoring  consideration. — Whether, 


upon  a  disaffirmance  of  the  contract,  a  restitution  of  the  con- 
sideration received  for  the  sale  is  necessary,  is  a  question  upon 
which  the  authorities  are  much  in  conflict.  Certain  of  the 
cases  hold  that  such  restitution,  either  in  specie  or  in  value, 
is  necessary;4  others  that  it  is  necessary  in  equity,  but  not  at 


774;  House  v.  Alexander,  105  Ind. 
109,  4  N.  E.  R  891,  55  Am.  R.  189; 
Hoyt  v.  Wilkinson,  57  Vt.  404;  Price 
v.  Furnian,  27  Vt.  268,  65  Am.  Dec. 
194;  Willis  v.  Twambly,  13  Mass.  204; 
Stafford  v.  Roof,  9  Cow.  626;  Bool  v. 
Mix,  17  Wend.  119,  31  Am.  Dec.  285); 
Hall  v.  Butterfield,  59  N.  H.  354,  47 
Am.  R.  209. 

iScranton  v.  Stewart,  52  Ind.  68; 
Long  v.  Williams,  74  Ind.  115. 

2  St.  Louis,  etc.  Ry.  Co.  v.  Higgins, 
44  Ark.  293;  Watson  v.  Billings,  38 
Ark.  278;  Sims  v.  Everhardt,  102  U.  S. 
300. 

3Chapin  v.  Shafer,  49  N.  Y.  407; 
State  v.  Plaisted,  43  N.  H.  413;  State 
v.  Howard,  88  N.  C.  650.  Said  Peck- 
ham,  J.,  in  Chapin  v.  Shafer,  of  the 
disaffirmance  of  a  chattel  mortgage: 
"Assuming  that  the  mortgage  is 
voidable  only,  then  the  mortgagor 
had  a  right  to  avoid  it  at  any  time 
before  he  arrived  at  age  and  within 
a  reasonable  time  thereafter,  by  any 
act  which  evinced  that  purpose,  and 
an  unconditional  sale  of  the  prop- 
erty is  such  an  act." 

4  In  Taft  v.  Pike,  14  Vt.  405,  39  Am. 
Dec.  228,  it  is  said:  "It  is  well  settled 
that  if  an  infant  has  executed  the 
contract    on  his  part   by   the  pay- 


ment of  money  or  the  delivery  of 
property,  he  cannot  disaffirm  the 
contract  and  recover  back  what  he 
has  paid,  without  restoring  to  the 
other  party  what  he  has  received 
from  him.  Holmes  v.  Blogg  (8  Taunt. 
508),  4  Com.  L.  252;  Corpe  v.  Over- 
ton (10  Bing.  252),  25  id.  121;  Farr  v. 
Sumner,  12  Vt.  32,  36  Am.  Dec.  :!'37.-' 
To  like  effect:  Whitcomb  v.  Joslyn, 
51  Vt.  79,  31  Am.  R.  678  (but  Price  v. 
Furman,  27  Vt.  268,  65  Am.  Dec.  194, 
recognizes  the  exception  spoken  of 
in  the  true  rule  as  given  in  the  text). 
In  Hall  v.  Butterfield,  59  N.  H.  354, 
47  Am.  R.  209,  it  is  said:  "So  they 
(infants)  were  formerly  allowed  to 
rescind  and  recover  what  they  had 
paid  on  their  contracts  without  re- 
storing what  they  had  received.  But 
this  lias  been  changed,  and  it  is  now 
held  that  they  cannot  rescind  with- 
out restoring  or  offering  to  restore 
the  consideration,  if  remaining  in 
specie  and  in  the  possession  or  con- 
trol of  the  infant  and  capable  of  re- 
turn; and  in  some  jurisdictions  it  is 
now  held  that,  where  the  considera- 
tion cannot  be  restored,  the  infant, 
before  he  can  be  allowed  to  rescind, 
must  place  the  adult  in  as  good  con- 
dition as  though  he  had  returned  the 


105 


§  109.] 


LAW    OF   SALE. 


[BOOK   I. 


law;1  and  still  others  that  it  is  not  necessary  at  all.2  The  true 
rule,  however,  seems  to  be  that  if,  at  the  time  of  the  disaffirm- 
ance, the  infant  still  has  in  his  possession  the  consideration  re- 
ceived, he  must  offer  to  return  it,  and  that  he  cannot  disaffirm 
the  contract,  if,  before  disaffirmance,  but  after  attaining  major- 


consideration,  or  he  must  account 
for  the  value  of  it."  [Citing  Carr  v. 
Clough,  26  N.  H.  289,  59  Am.  Dec. 
345;  Heath  v.  West,  28  N.  H.  101; 
Locke  v.  Smith,  41  id.  346;  Young  v. 
Stevens,  48  id.  133,  2  Am.  R.  202; 
Heath  v.  Stevens,  48  N.  H.  251 ;  Kim- 
ball v.  Bruce,  58  id.  327;  Price  v. 
Furman,27  Vt.  268,  65  Am.  Dec.  194; 
Badger  v.  Phinney,  15  Mass.  359,  8 
Am.  Dec.  105;  Riley  v.  Mallory,  33 
Conn.  201.]  See  also  Stack  v.  Cava- 
naugh,  67  N.  H.  149,  30  Atl.  R.  350. 

1  Speaking  of  the  disaffirmance  of 
executed  as  distinguished  from  ex- 
ecutory contracts,  it  is  said  in  Eureka 
Co.  v.  Edwards,  71  Ala.  248,  46  Am. 
R.  314,  of  the  former:  "Then  the 
quondam  infant,  or  any  one  assert- 
ing claim  in  his  right,  must  become 
the  actor;  and  coming  into  court  in 
quest  of  equity,  he  must  do  or  offer 
to  do  equity,  as  a  condition  on  which 
relief  will  be  decreed  to  him.  This 
is  the  difference  between  asking  and 
resisting  relief.  Roof  v.  Stafford,  7 
Cow.  (N.  Y.)  179;  Hillyer  v.  Bennett, 
3  Edw.  (N.  Y.)  Ch.  222;  Bartholomew 
v.  Finnemore,  17  Barb.  (N.  Y.)  428; 
Smith  v.  Evans,  5  Humph.  (Tenn.)  70; 
Mustard  v.  Wohlford.  15  Gratt.  (Va.) 
329,  76  Am.  Dec.  209;  Bedinger  v. 
Wharton,  27  Graft.  (Va.)  857.  But 
it  is  only  in  equity  this  principle  ob- 
tains. If  the  suit  be  at  law,  the  ten- 
der need  not  ordinarily  be  made  as  a 
condition  of  recovering  the  property. 
But  if  the  suit  be  in  equity,  and  if 
the  money  or  other  valuable  thing 
be  stdl  in  esse,  and  in  possession  of 


the  party  seeking  the  relief,  or  in 
him  from  whom  the  right  to  sue  is 
derived,  the  bill,  to  be  sufficient, 
must  tender,  or  offer  to  produce  or 
pay,  as  the  case  may  be.  Not  so,  if 
the  infant  has  used  or  consumed  it 
during  his  minority.  Badger  v.  Phin- 
ney, LTMass.  359,  8  Am.  Dec.  105: 
Price  v.  Furman,  27  Vt.  268,  65  Am. 
Dec.  194;  Chandler  v.  Simmons,  97 
Mass.  508,  93  Am.  Dec.  117;  Walsh  v. 
Young,  110  Mass.  396;  Green  v.  Green, 
69  N.  Y.  553,  25  Am.  R.  233;  Dill  v. 
Bo  wen,  54  Ind.  204;  Phillips  v.  Green, 
5  T.  B.  Mon.  (Ky.)  344;  Goodman  v. 
Winter,  64  Ala.  410,  38  Am.  R.  13; 
Roberts  v.  Wiggin,  1  N.  H.  73,  8  Am. 
Dec.  38." 

2  Carpenter  v.  Carpenter,  45  Ind. 
142;  White  v.  Branch,  51  Ind.  210; 
Briggs  v.  McCabe,  27  Ind.  327,  89 
Am.  Dec.  503.  In  Clark  v.  Van  Court, 
100  Ind.  113,  50  Am.  R.  774,  the  rule 
in  that  state  is  stated  as  follows:  "A 
contract  made  by  an  infant,  although 
executed,  is,  as  to  him,  voidable  (Fet- 
row  v.  Wiseman,  40  Ind.  148),  and  it 
may  be  avoided  by  him  at  any  time 
during  his  minority,  or  on  his  ar- 
rival at  full  age  (Indianapolis  Chair 
Mfg.  Co.  v.  Wilcox,  59  Ind.  429),  with- 
out returning  or  offering  to  return  to 
the  other  party  the  property  which 
was  obtained  from  him  under  the 
contract.  Carpenter  v.  Carpenter,  45 
Ind.  142;  Towell  v.  Pence,  47  Ind.  304; 
White  v.  Branch,  51  Ind.  210;  Dill  v. 
Bowen,  54  Ind.  204."  See  also  St. 
Louis,  etc.  Ry.  Co.  v.  Higgins,  44 
Ark.  293. 


106 


en.  in.] 


CAPACITY    OF    PARTIES. 


[§  109. 


ifcy,  he  has  disposed  of  the  property  or  thing  received,  or  has 
fraudulently  disposed  of  the  consideration  with  a  view  of  avoid- 
ing the  necessity  of  a  return  in  case  of  a  subsequent  disaffirm- 
nace.  But  where  during  infancy  he  has,  even  improvidently 
or  carelessly,  consumed,  spent,  lost  or  injured  the  money  or 
thing  received  as  the  consideration,  he  may,  notwithstanding, 
either  before  or  within  a  reasonable  time  after  majority,  dis- 
affirm the  contract,  and  recover  what  he  has  parted  with,  al- 
though he  is  unable  either  to  return  what  he  received,1  or  to 
return  it  in  as  good  condition  as  when  he  received  it.2 


i  Price  v.  Furman,  27  Vt.  268,  65 
Am.  Dec.  194,  is  a  leading  case  among 
the  earlier  ones  in  which  this  rule 
was  recognized.  It  is  there  said: 
"  The  doctrine  is  now  well  settled  by 
the  authorities  that  when  a  contract 
is  avoided  by  an  infant  he  may  re- 
cover back  whatever  he  has  paid  or 
delivered  on  it.  If  services  have  been 
rendered,  he  may  recover  in  quantum 
meruit  the  value  that  his  services 
have  been  upon  the  whole  state  of 
the  case;  if  money  or  property  has 
been  paid  or  delivered,  it  can  equally 
be  recovered.  Moses  v.  Stevens,  2 
Pick.  (Mass.)  382;  Vent  v.  Osgood,  19 
id.  572;  Voorhees  v.  Wait,  15  N.  J.  L. 
343;  Judkins  v.  Walker,  17  Me.  38, 
35  Am.  Dec.  229;  Whitmarsh  v. 
Hall,  3  Denio  (N.  Y.),  375.  But  in  all 
such  cases,  as  a  general  rule,  if  the 
infant  rescinds  the  contract  and 
avoids  hisliabilityupon  it,  he  must  sur- 
render the  consideration  and  return 
what  he  has  received,  for  it  would  be 
unjust  to  permit  him  to  recover  back 
what  he  has  paid  or  delivered  and  at 
the  same  time  permit  him  to  retain 


the  fruits  of  the  contract  which  he 
has  received.  Taft  v.  Pike,  14  Vt. 
405,  39  Am.  Dec.  228;  Walker  v.  Fer- 
rin,  4  id.  523;  Weed  v.  Beebe,  21  id. 
495;  Hillyer  v.  Bennett,  3  Edw.  (N.  Y.) 
Ch.  222;  Kitchen  v.  Lee,  11  Paige 
(N.  Y),  107,  42  Am.  Dec.  101.  This 
rule,  however,  is  subject  to  an  im- 
portant qualification.  A  distinction 
is  to  be  observed  between  the  case  of 
an  infant  in  possession  of  such  prop- 
erty after  age  and  when  he  lias  lost, 
sold  or  destroyed  the  property  during 
his  minority.  In  the  former  case,  if 
he  has  put  the  property  out  of  his 
power,  he  has  ratified  the  contract 
and  rendered  it  obligatory  upon  him; 
in  the  latter  case  the  property  is  to 
be  restored  if  it  be  in  his  possession 
and  control.  If  the  property  is  not 
in  his  hands  nor  under  his  control, 
that  obligation  ceases.  To  say  that 
an  infant  cannot  recover  back  his 
property,  which  he  has  parted  with 
under  such  circumstances,  because 
by  his  indiscretion  he  has  spent,  con- 
sumed or  injured  that  which  he  re- 
ceived, would  be  making  his  want  of 


2  Evidence  of  depreciation  in  the 
value  of  the  article  to  be  returned 
by  the  infant  is  inadmissible  either 
for  the  purpose  of  defeating  a  recov- 
ery, or  for  the  purpose  of  reducing 


the  damages,  in  an  action  by  him  to 
recover  the  consideration  upon  his 
disaffirmance  of  the  contract.  Price 
v.  Furman,  27  Vt.  268,  65  Am.  Dec. 
194. 


107 


§  no.] 


LAW    OF    SALE. 


[book 


§  110.  Right  to  recover  from  subsequent  bona  fide 

purchaser.— The  right  of  the  infant  to  disaffirm  is,  it  is  said, 
an  absolute  and  paramount  one,  superior  to  the  equities  of  all 
other  persons,  and,  when  it  may  be  exercised  at  all,  it  may  be 
exercised  against  the  lona  fide  purchaser  from  his  grantee  as 
well  as  from  such  grantee  himself.1 


discretion  the  means  of  binding  him 
to  all  his  improvident  contracts  and 
deprive  him  of  that  protection  which 
the  law  designed  to  secure  to  him. 
The  authorities,  we  think,  fully  sus- 
tain this  qualification  of  that  rule. 
Fitts  v.  Hall,  9  N.  H.  441;  Robbins  v. 
Eaton,  10  id.  562;  Boody  v.  McKen- 
ney.  23  Me.  517,  525,  526:  Tucker  v. 
Moreland,  1  Am.  Lead.  Cas.  260." 

In  Craig  v.  Van  Bebber,  100  Mo. 
584, 13  S.  W.  R.  906,  18  Am.  St.  R.  569, 
it  is  said:  "  If  he  has  wasted  or  squan- 
dered the  consideration  or  property 
during  infancy,  then  he  can  repudi- 
ate the  contract  without  making  a 
tender.  Tyler  on  Infancy  (2d  ed.), 
§  37;  Green  v.  Green,  69  N.  Y.  553, 
25  Am.  R.  233;  Chandler  v.  Simmons, 
97  Mass.  508,  93  Am.  Dec.  117;  Reyn- 
olds v.  McCurry,  100  111.  356;  Bran- 
don v.  Brown,  106  111.  519;  Price  v. 
Furman,  27  Vt.  268,  65  Am.  Dec.  194; 
Walsh  v.  Young,  110  Mass.  396.  The 
privilege  of  repudiating  a  contract  is 
accorded  an  infant  because  of  the  in- 
discretion incident  to  his  immatu- 
rity;  and  if  he  were  required  to  re- 
store an  equivalent,  where  he  has 
wasted  or  squandered  the  property, 
or  consideration  received,  the  privi- 
lege would  be  of  no  avail  when  most 
needed."'  (Kerr  v.  Bell,  44  Mo.  120; 
Highley  v.  Barron,  49  Mo.  103;  and 
Baker  v.  Kennett,  54  Mo.  82,  were 
modified.) 

In  Green  v.  Green,  69  N.  Y  553,  25 
Am.  R.  233  (involving a  sale  of  land), 
Church,  C.  J.,  says:  "The  right  to 


repudiate  is  based  upon  the  incapac- 
ity of  the  infant  to  contract,  and 
that  incapacity  applies  as  well  to  the 
avails  as  to  the  property  itself,  and 
when  the  avails  of  the  property  are 
improvidently  spent  or  lost  by  spec- 
ulation or  otherwise  during  minor- 
ity, the  infant  should  not  be  held  re- 
sponsible for  an  inability  to  restore 
them.  To  do  so  would  operate  as  a 
serious  restriction  upon  the  right  of 
an  infant  to  avoid  his  contract,  and 
in  many  cases  would  destroy  the 
right  altogether.  .  .  The  right 
to  rescind  is  a  legal  right  established 
for  the  protection  of  the  infant,  and 
to  make  it  dependent  upon  perform- 
ing an  impossibility,  which  impossi- 
bility has  resulted  from  acts  which 
the  law  presumes  him  incapable  of 
performing,  would  tend  to  impair  the 
right  and  withdraw  the  protection.'' 

Restoration  not  necessary  where  it 
has  been  dissipated  during  minority. 
Bullock  v.  Sprowls  (1899).  93  Tex.  188, 
47  L.  R.  A.  326,  54  S.  W.  R.  661 ;  Ridge- 
way  v.  Herbert  (1899),  150  Mo.  606,51 
S.  W.  R  1040;  American  Freehold 
Mtg.  Co.  v.  Dykes  (1895),  111  Ala.  178, 
20  S.  R.  136,  56  Am  St.  R.  38.  But  he 
must  refund  if  he  has  it.  Sanger  v. 
Hibbard  (1899),  —  Ind.  Ter.  — ,  53  S. 
W.  R.  330;  Englebert  v.  Troxell  (1894), 
40  Neb.  195,  58  N.  W.  R.  852,  42  Am. 
St.  R.  065. 

i  Brantley  v.  Wolf,  60  Miss.  420; 
Howard  v.  Simpkins,  70  Ga.  322;  Hill 
v.  Anderson,  5  Smedes  &  M.  (Miss.) 
216. 


108 


CH.  III.]  CAPACITY   OF   PAETIES.  [§§  111-114. 

§  111.  Chattel  mortgage  made  by  iufant. —  The  infant's 
mortgage  of  his  chattels  stands  upon  ground  rather  more  ad- 
vantageous to  him  than  his  sales  of  like  property,  particularly 
-when  not  accompanied  by  a  change  of  possession  or  not  given 
for  necessaries. 

§  112.  When  avoided. —  Like  his  contracts  of  sale,  his 

mortgage  of  his  chattels  may  be  avoided  by  him  either  during 
his  infancy  or  within  a  reasonable  time  thereafter.1 

§  113.  Returning  consideration. —  And  he  may  do  this 

without  being  bound,  certainly  where  he  has  disposed  of  it,  to 
return  the  consideration  received  for  the  mortgage.2  If  it  were 
otherwise,  if  an  infant  "  borrows  money,  and  improvidently 
disposes  of  it,  as  the  law  from  his  want  of  discretion  presumes 
he  may  do,  this  very  indiscretion  which  the  law  endeavors  to 
shield  and  protect  becomes  the  means  of  fastening  the  imper- 
fect obligation  irrevocably  upon  him,  and  his  inability  to  refund 
what  he  has  borrowed  affirms  his  contract  to  repay  it  with  in- 
terest. It  is  needless  to  say  that  there  is  no  privilege  and  no 
protection  in  such  a  rule." 3  "  Under  the  operation  of  such  a 
rule,  money  lenders  would  soon  become  permanently  possessed 
of  the  property  of  infant  spendthrifts,  for  with  them  the  temp- 
tation to  borrow  for  immediate  gratification  is  generally  too 
great  to  be  resisted.  Its  adoption  as  a  rule  would  be  in  vio- 
lation of  the  principle  of  protection  that  underlies  the  whole 
doctrine  of  the  law  pertaining  to  the  dealings  and  contracts  of 
infants." 4 

§  114.  How  disaffirmed. —  The  disaffirmance  of  the 

chattel  mortgage  may  be  accomplished  by  the  same  means 
which  would  suffice  in  case  of  a  sale.     Certainly  an  absolute 

i  Miller  v.  Smith,  26  Minn.  248,  2  W.  R.  942,  37  Am.  .R.  407;  Corey  v. 

N.  W.  R.  942,  37  Am.  R,  407,  citing  Burton,  32  Mich.  30. 

Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626;  3Cooley,   J.,  in  Corey  v.  Burton, 

Chapin  v.  Shafer,  49  N.  Y.  407;  Ran-  supra. 

dall  v.  Sweet,  1  Den.  (N.  Y.)  460.  *  Cornell,  J.,  in  Miller  v.   Smith, 

2  Miller  v.  Smith,  26  Minn.  248,  2  N.  supra, 

109 


§§  115-118.]  LA.W    OF    SALE.  [BOOK    I. 

and  unconditional  sale  of  the  mortgaged  property  would  be 
clear  evidence  of  an  intention  to  disaffirm.1 

§  115.  Purchases  by  infant,  voidable  when  not  necessa- 
ries.—  An  infant's  purchases  of  goods,  not  constituting  what 
are  known  as  necessaries,2  are,  though  executed  upon  his  part, 
voidable  like  his  executed  contracts  of  sale.3 

§  116.  When  may  he  avoided. —  And  like  the  contract 

of  sale,  the  contract  of  purchase  may  be  disaffirmed  by  the  in- 
fant either  during  his  minority,4  or  within  a  reasonable  time 
after  he  becomes  of  age.5 

g  117.  How  avoided. —  The  methods  which  may  be 

pursued  are  substantially  the  same  which  suffice  in  the  case, 
already  considered,6  of  the  sale  or  exchange,  as  by  notice,  ten- 
der, action  at  law,  or  plea  of  infancy.  In  one  case 7  an  infant 
had  purchased  a  horse,  and  sixteen  days  afterward  tendered 
the  horse  to  the  seller  and  demanded  the  price  paid.  The  seller 
refused  to  receive  the  horse  or  return  the  money,  and  the  in- 
fant therefore  kept  the  horse  and  brought  an  action  for  a  rescis- 
sion and  a  recovery  of  the  money.  Said  the  court:  "  We  think 
it  perfectly  clear  that  after  an  infant  has  done  all  in  his  power 
to  secure  a  rescission,  and  has  brought  suit  to  rescind  the  con- 
tract, he  cannot  be  held  to  have  ratified  the  contract  because 
the  property  is  still  retained  by  him.  What  more  he  could  do 
to  evince  his  repudiation  of  the  contract,  or  what  more  he  could 
legally  do  toward  putting  it  into  the  possession  of  the  seller, 
we  are  at  a  loss  to  conjecture." 

§  118.  Necessity  for  return  of  consideration. —  The 

same  question  as  to  the  necessity  of  a  return  of  the  considera- 

iChapin  v.  Shafer,  49  N.  Y.  407;  cox,  59  Ind.  429;  Rice  v.  Boyer,  108 

State  v.  Plaisted,  43  N.  H.  413;  State  Ind.  472,  9  N.  E.  R.  420,  58  Am.  R.  53; 

v.  Howard,  88  N.  C.  650.  House  v.  Alexander.  105  Ind.  109,  4 

2  See  post,  §  130.  N.  E.  R.  891,  55  Am.  R.  189. 

3  See  ante,  §  106.  s  See  post,  §  121 ;  ante,  %  107. 
*  Riley  v.  Mallory,  33  Conn.  201;  6  See  ante,  §  108. 

Cogley  v.  Cushman,  16  Minn.  397;        7  House  v.  Alexander,  105  Ind.  109, 
Indianapolis  Chair  Mfg.  Co.  v.  Wil-    55  Am.  R.  189,  4  N.  E.  R.  891. 

110 


CH.  III.] 


CAPACITY    OF    PARTIES. 


[§  H8. 


tion  arises  here  which  arises  in  the  case,  already  considered, 
of  the  infant's  sale  of  his  property.1  And,  notwithstanding 
like  conflict  in  the  authorities,  the  true  rule  seems  to  be,  here 
as  there,  that  the  infant's  failure  to  tender  back  the  goods 
bought  will  defeat  his  right  to  disaffirm,  only  when  at  the  time 
of  his  disaffirmance  he  has  them  in  his  possession  or  under  his 
control,  or  has  disposed  of  them  after  coming  of  age;  and 
that  where,  during  infancy,  he  has,  improvidently  or  other- 
wise, lost,  injured,  disposed  of,  or  consumed  them,  he  may  re- 
cover the  price  paid  without  a  return  of  the  goods,2  even  in 
equity.3  Thus,  where  the  goods  have  been  wrongfully  taken 
from  him  upon  an  execution  against  a  third  person,  the  infant 
is  not  bound  to  attempt  their  recovery  in  order  to  return  them 
upon  disaffirmance.  It  is  enough  that  they  have  passed  out  of 
his  possession  and  beyond  his  present  control.4 

erty  or  it  is  destroyed,  then  it  is  im- 
possible to  administer  this  equity. 
To  hold  that  in  such  a  case,  when 
the  infant  is  sued  for  the  price,  ho 
might  defend  against  his  liability  on 
the  contract,  but  is  to  be  held  re- 
sponsible as  for  a  tort  in  converting 
the  property,  would  be  practically 
to  debar  him  from  the  plea  of  in- 
fancy as  to  his  unauthorized  con- 
tracts, unless  he  was  prepared  to 
place  the  vendor  in  statu  quo  by  a 
return  of  the  property.  In  other 
words,  the  disability  of  infancy 
would  only  amount  to  the  right  to 
rescind  the  contract,  and  if  unable 
to  comply  with  a  necessary  condi- 
tion of  this,  that  is,  the  return  of  the 
property,  then  he  would  always  be 
held  liable  for  its  value.  He  would 
be  liable  for  the  value,  either  in  con- 
tract or  tort,  but  would  have  the 
right  to  rescind  as  the  extent  of  his 
rights  under  the  disability  of  in- 
fancy. We  do  not  so  understand  the 
law." 

4  Lemmon  v.  Beeman,  45  Ohio  St. 
505,  15  N.  E.  R  476. 


1  See  ante,  §  109. 

2  Shirk  v.  Shultz,  113  Ind.  571,  15 
N.  E.  R.  12;  Lemmon  v.  Beeman,  45 
Ohio  St.  505,  15  N.  E.  R.  476:  Morse 
v.  Ely  (1891),  154  Mass.  458,  28  N.  E. 
R.  577  [citing  Chandler  v.  Simmons, 
97  Mass.  508,  514;  Bartlett  v.  Drake, 
100  Mass.  174, 177;  Walsh  v.  Young, 
110  Mass.  396,  399;  Dube  v.  Beaudry, 
150  Mass.  448,  23  N.  E.  R.  222;  Boody 
v.  McKenney,  23  Me.  517;  Price  v. 
Furman,  27  Vt.  268]. 

3  In  Nichol  v.  Steger,  6  Lea  (Tenn.), 
393,  affirming  the  decree  of  Cooper, 
Oh.,  2  Tenn.  Ch.  328,  it  is  said:  "It  is 
earnestly  urged,  however,  that  the 
infant,  in  a  court  of  equity,  must  re- 
turn the  property  before  he  can  dis- 
affirm the  contract.  We  need  but 
say,  that  where  the  property  is  in  his 
possession,  or  he  still  has  it,  so  that 
the  court  can  compel  him  so  to  do, 
he  will  be  required  to  return  it,  as 
one  of  the  terms  on  which  the  court 
gives  relief  from  an  improvident 
contract,  or  one  made  by  a  party 
under  the  disability  of  infancy.  But 
where  he  has  parted  with  the  prop- 


Ill 


§§  119,  120.]  LAW  OF  SALE.  [BOOK  I. 

§  119.  Ineffectual  defenses  —  Recoupment  —  Injury 

to  goods  —  Stolen  money  —  Representation  as  to  age. —  In 

an  action  to  recover  the  price  paid  the  defendant  cannot  re- 
coup damages  for  the  use  of  the  property  while  in  the  infant's 
possession.  In  a  case l  where  this  defense  was  attempted  the 
court  said:  "The  contract,  express  or  implied,  to  pay  for  such 
use  is  one  he  is  incapable  of  making,  and  his  infancy  would  be 
a  bar  to  such  suit.  We  cannot  see  how  the  defendants  can 
avail  themselves  of  and  enforce,  by  way  of  recoupment,  a  claim 
which  they  could  not  enforce  by  a  direct  suit." 

So,  that  the  goods  have  deteriorated  in  value,  has  been  held 
to  be  no  defense  to  an  action  to  recover  the  price.2  And 
the  fact  that  the  infant  stole  the  money  with  which  to  buy  the 
coods  is  no  defense  to  the  seller  so  long  as  the  owner  of  the 
money  makes  no  claim  upon  the  seller.3  Neither  is  it  a  bar  to 
disaffirmance  that  the  infant  fraudulently  represented  himself 
to  be  of  age,  though  the  seller  may,  perhaps,  have  an  action 
for  the  fraud.4 

§  12o#  Effect  of  disaffirmance  — Not  only  entitles  in- 
fant to  restoration,  but  reinvests  seller's  title. —  The  elfect 
of  the  disaffirmance  is  not  only  to  entitle  the  infant  to  recover 
his  money,  but  it  also  reinvests  the  seller  with  the  title  to  the 
goods.5  If,  therefore,  the  infant  disaffirms  the  transaction, 
either  actively,  in  the  case  of  the  executed  contract,  as  by  seek- 
ing to  recover  the  price  paid ;  or  passively,  in  the  case  of  the 
executory  contract,  as  by  setting  up  the  defense  of  infancy 

1  McCarthy  v.  Henderson  (1885),  that  an  infant,  on  rescinding  the  pur- 
138  Mass.  310.  See  also  Pyne  v.  Wood  chase  of  a  bicycle,  and  claiming  the 
(1888),  145  Mass.  558,  14  N.  E.  R.  775,  return  of  the  instalments  paid  upon 
and  Rice  v.  Butler,  cited  in  the  fol-  it,  must  account  for  the  use  and  de- 
lowing  note.  terioration  of  the  wheel. 

2  Price  v.  Furman  (1855),  27  Vt.  268,  3  Riley  v.  Mallory,  33  Conn.  201. 

65  Am.  Dec.  1(J4;  Stack  v.  Cavanaugh  4  Carpenter  v.  Carpenter,  45  Ind. 

(1891),  67  N.  H.  149,  30  Atl.  R.  350.  142.    See  also  Slayton  v.  Barry  (1900), 

But  in   Rice  v.  Butler  (1899),  160  175  Mas  .  513,  56  N.  E.  R  574. 

N.  Y.  578,  55  N.  E.  R.  275,  47  L.  R.  A.  *  Shirk  v.  Shultz,  113  Ind.  571,  15 

303,  it  is  held,  denying  McCarthy  v.  N.  E.  R.  12,  and  cases  in  next  note. 
Henderson  and  Pyne  v.  Wood,  supra, 

112 


CH.  III.] 


CAPACITY    OF   PARTIES. 


[§  120. 


when  sued  for  the  price,  the  other  party  is  entitled  to  have 
back  from  the  infant  the  goods  sold,  if  in  the  infant's  posses- 
sion at  the  time  of  the  disaffirmance;  and,  if  the  infant  refuses 
to  surrender  them,  or  after  disaffirmance  sells,  disposes  of  or 
destroys  them,  the  seller  may  maintain  the  appropriate  action 
either  to  recover  the  goods  or  their  value.1 

Chattel  mortgage. —  The  same  rule  applies  where  the  infant 
lias  given  a  mortgage  upon  the  goods  to  secure  the  purchase 
price,  or  a  portion  thereof  —  he  cannot  avoid  the  mortgage 
and  keep  the  goods;  if  he  repudiates  the  mortgage,  he  repu- 
diates the  whole  transaction,  and  the  seller  may  recover  the 
goods.2 

Conditional  sale. —  It  applies  also  where  the  infant  has  pur- 
chased goods  upon  the  contract  ordinarily  known  as  a  "  condi- 
tional sale,"  i.  e.,  where  the  title  is  not  to  pass  until  payment. 
He  cannot,  by  avoiding  his  agreement  to  pay,  obtain  an  absolute 
title  to  the  goods.     If  he  disaffirms,  the  whole  contract  is  at 


i  In  Fitts  v.  Hall,  9  N.  H.  441,  the 
court  say:  "If,  after  the  defendant 
in  this  case  had  interposed  his  plea  of 
infancy  and  refused  to  perform  the 
contract,  the  plaintiff  had  demanded 
the  (goods),  and  the  defendant,  hav- 
ing them  in  his  possession,  had  re- 
fused to  deliver  them,  that  would 
have  been  a  wilful,  positive  wrong 
of  itself,  disconnected  from  the  con- 
tract, and  upon  such  evidence  the 
count  in  trover  might  have  been 
maintained.  Where  goods  were  sold 
to  an  infant,  on  a  credit,  upon  his 
representation  that  he  was  of  full 
age,  and  a  plea  of  infancy  was  inter- 
posed, an  action  of  replevin  was  sus- 
tained against  his  administrator, 
after  a  demand  upon  him.  Badger 
v.  Phinney,  15  Mass.  359,  8  Am.  Dec. 
105.  In  this  latter  case  the  defense 
of  infancy  was  made  by  the  admin- 
istrator of  the  infant ;  the  demand  of 
the  goods  was  made  upon  him,  and 
the  action  sustained  against  him; 


but  the  court  said  'the  basis  of  this 
contract  has  failed,  from  the  fault, 
if  not  the  fraud,  of  the  infant;  and 
on  that  ground  the  property  may  be 
considered  as  never  having  passed 
from,  or  as  having  revested  in,  the 
plaintiff.'  And  upon  this  ground,  if 
the  infant,  having  rescinded  his  con- 
tract, withholds  the  goods  purchased, 
after  a  demand  which  he  had  power 
to  comply  with,  there  seems  to  be  no 
good  reason  why  he  should  not  an- 
swer in  trover,  the  same  as  for  any 
other  conversion  of  property  law- 
fully in  his  possession."  Vasse  v. 
Smith,  6  Cranch  (U.  S.),  231;  Mills  v. 
Graham,  4  Bos.  &  Pul.  140.  See  also 
Walker  v.  Davis,  1  Gray  (Mass.),  506; 
Heath  v.  West,  28  N.  H.  101;  Skin- 
ner v.  Maxwell,  66  N.  C.  45;  Bennett 
v.  McLaughlin,  13  111.  App.  349;  Car- 
penter v.  Carpenter,  45  Ind.  142. 

2  Heath  v.  West,  28  N.  H.  101;  Skin- 
ner v.  Maxwell,  66  N.  C.  45. 


113 


121.] 


LAW    OF    SALE. 


[BOOK    I. 


an  end,  and  the  vendor  is  entitled  to  a  restoration  of  his  goods, 
and  may  recover  them  in  replevin.1 

§  121.  Ratification  of  purchases. —  After  he  becomes  of  age,2 
thouo-h  not  before,3  the  infant  may  ratify  and  affirm  the  pur- 
chase.  This  he  may  do,  either  expressly,  by  some  intentional 
act  directed  to  that  end,  or  impliedly,  by  so  dealing  with  refer- 
ence to  the  subject-matter  that  his  affirmance  may  be  presumed.4 
The  express  ratification,  of  course,  occasions  less  legal  difficulty 
than  the  implied. 


i  Robinson  v.  Berry  (1899),  93  Me. 
320,  45  Atl.  R.  34. 

2  See  ante,  §  99. 

*  See  ante,  §99. 

4  In  Philpot  v.  Sandwich.  Mfg.  Co. 
(18S5),  18  Neb.  54.  Maxwell,  J.,  said: 
"After  an  infant  has  arrived  at  the 
age  of  twenty-one  years,  he  may  dis- 
avow or  ratify  any  contracts  not 
made  for  necessaries.  In  the  absence 
of  any  statute  providing  how  a  con- 
tract shall  be  ratified,  any  one  of 
three  modes  ordinarily  will  be  suffi- 
cient: 1st.  An  express  ratification. 
2d.  Acts  which  imply  an  affirmance. 
3d.  The  omission  to  disaffirm  in  a 
reasonable  time.  The  particular  acts 
which  constitute  a  ratification  must 
necessarily  depend  to  a  great  extent 
on  the  nature  of  the  contract.  When 
it  is  executed  and  beneficial  to  the 
infant  —  as  where  he  has  purchased 
real  estate  —  it  vests  in  him  the  free- 
hold until  he  disagrees  to  it,  and  the 
continuance  in  possession  until  he  is 
of  age  is  an  implied  confirmation  of 
the  contract.  So  as  to  a  lease.  De- 
lano v.  Blake,  11  Wend.  85;  Jones  v. 
Phenix  Bank,  4  Seld.  228.  And  an 
infant  cannot  be  permitted  to  re- 
tain personal  property  purchased  by 
him,  and  at  the  same  time  repudiate 
the  contract  upon  which  he  received 
it.  Kitchen  v.  Lee,  11  Paige,  107; 
Lynde  v.  Budd,  2  id.  191;  Deason  v. 


Boyd,  1  Dana.  45;  Cheshire  v.  Bar- 
rett. 4  McCord.  241;  Ottman  v.  Monk, 
3  Sandf.  431.  He  who  asks  equity 
must  do  equity.  In  the  case  at  bar 
the  purchase  was  a  joint  one.  The 
plaintiff,  after  coming  of  age,  so  far 
as  appears,  made  no  effort  to  return 
the  property,  but  still  retains  posses- 
sion. He  also  made  payments  on  the 
notes.  This  we  regard  as  a  sufficient 
affirmance  of  the  contract.  The  law 
which  enables  a  party  who  has  pur- 
chased property  during  infancy  to 
disaffirm  on  coming  of  age  is  to  be 
used  as  a  shield  and  not  as  a  sword  — 
as  a  means  by  which  he  may  be  dis- 
charged from  a  contract  which  he 
deems  prejudicial  The  object  is  not 
to  enable  him  to  rob  others  of  their 
property,  but  upon  making  restitu- 
tion to  be  discharged  from  the  con- 
tract. The  fact  that  when  Philpot 
made  the  promise,  after  coming  of 
age,  to  pay  the  notes,  he  did  not  know 
that  he  was  not  legally  liable  to  pay 
said  notes,  is  not  material  in  this  case, 
and  need  not  be  considered,  there 
being  a  sufficient  ratification  by  other 
acts  of  the  plaintiff.  The  plaintiff  in 
error  has  the  property,  the  fruit  of 
the  contract.  There  is  no  claim  or 
charge  that  it  was  of  less  value  than 
the  price  agreed  to  be  paid.  Hon- 
esty and  fair  dealing  require  that  he 
suould  pay  for  the  same." 


114 


CH.   III.] 


CAPACITY    OF    PARTIES. 


[§  121- 


^Vhat  has  been  said  in  previous  sections l  of  ratification  gen- 
erally, and  especially  of  the  necessity  of  a  new  consideration, 
knowledge  of  legal  effect,  and  like  matters,  is  applicable  here. 
But.  as  bearing  upon  the  subject-matter  of  this  section,  an  ex- 
press promise  to  pay  for  the  goods,  or  its  equivalent,  will  be  a 
ratification,2  but  not  a  mere  acknowledgment,3  or  a  part  pay- 


iSeecrnfe.  jig  99-105. 

2  In  Tibbets  v.  Gerri-h.  25  X.  H.  41. 
57  Am.  Dec.  307,  the  rule  is  stated 
thus:  "  Where  the  defense  interposed 
is  that  of  infancy,  and  a  new  prom- 
ise is  relied  upon,  a  more  stringent 
rule  prevails  than  where  the  defense 
is  the  statute  of  limitations.  To  sus- 
tain an  action  against  a  person  of 
full  age,  on  a  promise  made  by  him 
when  an  infant,  there  must  be  an 
express  ratification,  either  by  a  new 
promise  to  pay  or  by  positive  acts  of 
the  individual  after  he  has  been  of 
age  a  reasonable  time,  in  favor  of  his 
contracts,  which  are  of  a  character 
to  constitute  as  perfect  evidence  of 
a  ratification  as  an  express  and  un- 
equivocal promise.  Hale  v.  Gerrish, 
8  X.  H.  374:  Merriam  v.  Wilkins.  6 
id.  433,  25  Am.  Dec.  472:  Thompson 
v.  Lay.  4  Pick.  (Mats.)  48, 16  Am.  Dec. 
325:  Goodsell  v.  Myers.  3  Wend. 
(X.  Y.    47'.'." 


In  Catlin  v.  Haddox.  49  Conn.  492, 
44  Am.  R.  249.  the  court  approve  the 
rule  laid  down  in  Edmunds  v.  Mis- 
ter. 58  Misa  765.  as  follows:  "The 
executory  contracts  of  infants  for 
the  payment  of  money,  not  for  nec- 
essaries, impose  no  legal  liability 
upon    them.  .    They    can    be 

ratified  at  common  law  only  by  an 
act  or  agreement  which  possesses  all 
the  ingredients  necessary  to  a  new 
contract,  save  only  a  new  considera- 
tion. .  ,  ,  A  mere  acknowledg- 
ment of  the  debt  is  not  sufficient, 
but  there  must  be  an  express  prom- 
ise to  pay.  voluntarily  made.  .  .  . 
It  stands  not  upon  the  footing  of  a 
debt  barred  by  the  statute  of  limita- 
tions and  afterwards  revived  by  a 
new  promise,  because  in  such  a  case 
there  has  been  an  always-existing, 
unextinguished  right,  since  the  lim- 
itation affects  only  the  remedy  and 
not  the  right:  but  it  is  rather  like  a 


s  In  Whitney  v.  Dutch.  14  Has 
7  Am.  Dec.  229.  Parker.  C.  J.,  says: 
"  By  the  authorities,  a  mere  acknowl- 
edgment of  the  debt,  such  as  would 
take  a  case  out  of  the  statute  of  lim- 
itations, is  not  a  ratification  of  a  con- 
tract made  during  minority.  The  dis- 
tinction is  undoubtedly  well  taken. 
The  reason  is  that  a  mere  acknowl- 
edgment avoids  the  presumption  of 
payment  which  is  created  by  the 
statute  of  limitations:  whereas  the 
contract  of  an  infant  may  always, 
except  in  certain  cases  sufficiently 
known,  be  voided  by  him  by  plea. 


whether  he  acknowledges  the  debt 
or  not:  and  some  positive  act  or  dec- 
laration, on  his  part,  is  necessary  to 
defeat  his  power  of  avoiding  it."'  See 
also  Smith  v.  Mayo.  9  Mass.  62:  Ford 
v.  PhiUips.  1  Pick.  Mass.  302 :  Thomp- 
son v.  Lay,  4  Pick.  Mass.  4s  16  Am. 
Dec.  325;  Proctor  v.  Sears.  4  Allen 
(Mass.),  95:  Wilcox  v.  Roath,  12  Conn. 
550;  Edgerly  v.  Shaw.  5  Fost.  (N.  H.i 
514.  57  Am.  Dec.  349:  Conklin  v.  Og- 
born.  7  Ind.  553:  Reed  v.  Boshears,  4 
Sneed  (TennA  115=:  Turner  v.  Gaither, 
S3  X.  C.  357. 35  Am.  R.  574:  Alexander 
v.  Hutchison.  2  Hawks    X.  C. »,  535. 


115 


121.] 


LAW   OF   SALE. 


[BOOK   I. 


ment,1  except  pro  tanto.    So  the  retention  of  the  property,  with 
out  disaffirmance,  for  an  unreasonable  time  after  becoming  of 
age,2  and,  a  fortiori,  such,  a  retention  coupled  with  clear  acts 
of  ownership,  as  the  mortgaging  or  selling  the  property  as  his- 
own,3  will  amount  to  a  ratification. 


debt  wiped  out  by  a  discharge  in 
bankruptcy." 

In  Whitney  v.  Dutch,  14  Mass.  457, 
7  Am.  Dec.  229,  Parker,  C.  J.,  says: 
"  All  that  is  necessary  is  that  he  ex- 
pressly agrees  to  ratify  his  contract; 
not  by  doubtful  acts,  such  as  pay- 
ment of  part  of  the  money  due  or 
the  interest,  but  by  words,  oral  or  in 
writing,  which  import  a  recognition 
and  a  confirmation  of  his  contract." 
.  See  also  Baker  v.  Kennett,  54  Mo. 
82;  Hatch  v.  Hatch,  60  Vt.  160; 
Henry  v.  Root,  33  N.  Y.  526. 

A  mere  offer  to  submit  to  arbitra- 
tion is  not  a  ratification  (Benham  v. 
Bishop,  9  Conn.  330,  23  Am.  Dec.  358); 
nor  is  an  offer  to  compromise  (Mar- 
tin v.  Byrom,  Dud.  (Ga.)  203;  Ben- 
nett v.  Collins,  52  Conn.  1);  nor  a 
mere  declaration,  to  a  stranger,  of 
an  intention  to  perform.  Hoit  v. 
Underhill,  10  N.  H.  220,  32  Am.  Dec. 
380. 

Where  the  affirmance  is  condi- 
tional it  cannot  be  extended  beyond 
the  limits  fixed  by  the  conditions. 
Minock  v.  Shortridge,  21  Mich.  304. 
Thus,  if  the  promise  is  to  pay  when 
able,  the  plaintiff  must  show  ability 
to  pay.  Thompson  v.  Lay,  4  Pick. 
<Mass.)  48,  16  Am.  Dec.  325.  See  also 
Proctor  v.  Sears,  4  Allen  (Mass.),  95; 
Everson  v.  Carpenter,  17  Wend. 
(N.  Y.)  419;  Chandler  v.  Glover,  32 
Pa.  St.  509. 

i  Catlin  v.  Haddox,  49  Conn.  492,  44 
Am.  R.  249;  Robbins  v.  Eaton,  10 
N.  H.  561.  In  the  latter  case  it  is 
said:  "Payment  of  part  of  a  note  is 

1 


no  ratification  of  the  whole  because 
the  infant  may  admit  only  an  in- 
debtedness to  that  extent.  The  ratifi- 
cation should  be  equivalent  to  a 
new  contract.  Therefore  an  express 
promise  as  to  the  whole  debt  is  neces- 
sary. There  are  numerous  authori- 
ties to  this  effect,  but  there  are  cases 
where  notes  were  given  for  articles 
which  had  been  used  or  consumed 
prior  to  the  infant's  becoming  of  age. 
Where  the  matter  constituting  the 
consideration  of  the  note  is  not  in 
existence  when  the  infant  becomes 
of  age.  or  is  wholly  beyond  his  con- 
trol, there  is  nothing  upon  which  an 
implied  promise  can  arise,  and  an 
express  promise  to  pay  the  debt  can 
alone  render  the  infant  liable.  .  .  . 
But  where  the  consideration  of  the 
notes  is  still  in  existence,  in  as  per- 
fect a  state  after  the  infant  becomes 
of  age  as  before,  and  is  subject  to  his 
control,  he  may  so  deal  with  the 
articles  or  property  forming  such 
consideration  as  to  raise  an  implied 
promise  of  payment." 

2  Boyden  v.  Boyden,  9  Mete.  (Mass.) 
519;  McKamy  v.  Cooper,  81  Ga.  679; 
Delano  v.  Blake,  11  Wend.  (N.  Y.)  85, 
25  Am.  Dec.  617:  Aldrich  v.  Grimes, 
10  N.  H.  194;  Philpot  v.  Sandwich 
Mfg.  Co.,  18  Neb.  54,  24  N.  W.  R.  428. 

3  Thus,  retaining,  using,  and  finally 
selling,  after  maturity,  a  horse  pur- 
chased during  infancy  affirms  the 
purchase.  Cheshire  v.  Barrett,  4  Mc- 
Cord  (S.  C),  241,  17  Am.  Dec.  735. 
To  same  effect:  Lawson  v.  Love  joy, 
8  Greenl.  (Me.)  405.  23  Am.  Dec.  526; 

16 


€H.  III.]  CAPACITY    OF   PARTIES.  [§  122. 

§  122.  Liability  of  infant  for  necessaries. —  Notwithstand- 
ing the  infant's  general  inability  to  bind  himself  by  contracts 
it  is  well  settled  that  he  is  liable  for  necessaries  furnished  to 
him.  "Whether  his  liability  is  to  be  deemed  based  upon  his 
express  contract,  or  only  upon  a  contract  created  or  implied  by 
law,  is  a  question  of  some  importance  upon  which  writers  and 
judges  are  not  agreed.  Mr.  Bishop1  asserts  the  latter,  saying: 
"  The  books  often  speak  of  this  contract  as  though  it  were  an 
express  one,  which  the  law  authorizes  the  infant  to  make;  but 
the  doctrine  is  universal  that  the  measure  of  his  liability  is  the 
value  of  the  necessaries,  not  what  he  promised  to  pay  for  them,2 
so  there  is  no  propriety  in  designating  the  undertaking  as  ex- 
press, for  it  is  what  the  law  and  not  the  infant  has  made  it."3 
On  the  other  hand,  it  has  been  said  by  the  court  in  Texas:4 
""We  apprehend  the  better  doctrine  to  be  that  an  infant  may 
make  an  express  written  contract  for  necessaries  upon  which 
he  may  be  sued,  but  that,  by  showing  the  price  agreed  to  be 
paid  was  unreasonable,  he  can  reduce  the  recovery  to  a  just 
compensation  for  the  necessaries  received  by  him.  It  is  to  his 
benefit  to  hold  the  express  contract  not  void,  but  voidable; 

Boyden  v.  Boy  den,  9  Mete.  (Mass.)  not  only  an  abandonment  of  the  at- 

519;  Boody  v.  McKenney,  23  Me.  517;  tempted  rescission,  but  a  ratification 

Chapin  v.  Shafer,  49  N.  Y.  407;  Rob-  of  the  original  bargain, 

bins  v.  Eaton,  10  N.  H.  561;  Curry  v.  1  Bishop  on  Contracts,  §  908. 

St.  John  Plow  Co.,  55  111.  App.  82;  2  Citing  Hyer  v.  Hyatt,  3  Cranch 

American  Freehold  Mtg.  Co.  v.  Dykes  (U.  S.  C.  C),  276;    12  Fed.  Cas.  No. 

(1895),  111  Ala.  178,  20  S.  R.  136,  56  6977;  Commonwealth  v.  Hantz,2  Pa. 

Am.  St.  R.  38.  (P.  &  W.)  333;  Morton  v.  Steward,  5 

So  in  Hilton  v.  Shepherd  (1898),  92  111.  App.  533;    Bouchell  v.  Clary,  3 

Me.  160,  42  Atl.  R.  387,  it  appeared  Brev.  194;  Fairmount,   etc.  Ry.  Co. 

that  an    infant    bought  horses  for  v.  Stutler,  54  Pa.  St.  375,  93  Am.  Dec. 

which  he  gave  his  note  and  other  714. 

considerations.     After  he  became  of  3  Citing  Stone  v.  Dennison,  13  Pick, 

age,  he  first  used  the  horses  in  his  (Mass.)  1,  23  Am.  Dec.  654;  Earle  v. 

business,  and  then  sold  them  as  his  Reed,  10  Mete.  (Mass.)  387;   Gay  v. 

own.     In  a  suit  brought  by  him  to  Ballou,  4  Wend.  (N.  Y.)  403.  21  Am. 

recover  the  consideration  paid,  he  Dec.  158;   Hyman  v.  Cain,  3  Jones 

claimed  that  he  had  rescinded  the  (N.  C),  111;  Robinson  v.  Weeks,  56 

sale, —  but  prior  to  his  use  and  sale  of  Me.  102. 

the  hoi^ses.     Held,  that  his  conduct  4  Askey  v.  Williams.  74  Tex.  294. 

in  the  use  and  sale  of  the  horses  was  See  also  Bradley  v.  Pratt,  23  Vt.  378. 

117 


§§  123,   124:.]  LAW    OF    SALE.  [BOOK   I. 

for  if  it  be  voidable  merely  he  can  secure  the  advantage  of  a 
good  bargain,  and  may  relieve  himself  of  it  if  it  be  a  bad  one, 
while,  on  the  other  hand,  to  hold  it  void  would  deprive  him  of 
the  benefit  of  an  advantageous  contract." 

But  whatever  be  the  theory  upon  which  the  rule  is  based, 
the  rule  itself  is  one  established,  like  the  general  rule  of  non- 
liability, for  the  infant's  benefit  and  advantage;  for  if  he  could 
not  become  bound  for  necessaries,  he  might  be  left  to  suffer  for 
the  want  of  those  things  which  were  indispensable  to  his  life 
or  safety,  notwithstanding  that  he  had  certain  future  means  of 
payment. 

§  123.  For  what  amount  and  how  hound  —  Liability 

on  notes,  bonds,  etc. —  An  infant,  in  purchasing  necessaries,, 
may  make  an  express  contract  to  pay  for  them,  but  such  a 
promise  is  not  indispensable.  "  An  infant  is  liable  for  neces- 
saries in  the  same  manner  as  an  adult  is  liable;  and  his  con- 
tract or  promise  to  pay  is  to  be  established  in  the  same  manner." l 
The  promise  to  pay  may  therefore  be  implied.  So,  the  amount 
to  be  paid  may  be  expressly  agreed  upon,  but,  if  not,  the  law 
will  require  the  payment  of  the  reasonable  value;  and,  if  it  be 
expressly  agreed  upon,  the  law  will  require  the  payment  of  the 
reasonable  value  only,  though  the  agreed  amount  was  more.2 
Where  the  promise  is  express,  and  particularly  where  the 
amount  to  be  paid  is  expressly  agreed  upon,  some  questions  of 
difficulty  present  themselves.  These  usually  have  arisen  where 
the  contract  of  payment  was  in  writing,  as  where  the  infant 
had  given  his  note  or  bond  for  the  amount. 

§  124.  .  It  being  entirely  established  that,  whatever  his 

contract,  the  infant  can  be  held  only  for  the  reasonable  value  of 
the  goods,  the  questions  at  once  arise,  Is  his  express  promise,  per- 

1  Gay  v.  Ballou,  4  Wend.  (N.  Y.)  403,  111;  Locke  v.  Smith,  41  N.  H.  346; 
21  Am.  Dec.  158.  Beeler  v.  Young,  1  Bibb  (Ky.),  519; 

2  Stone  v.  Dennison,  13  Pick.  Guthrie  v.  Morris,  22  Ark.  411;  Brad- 
(Mass.)  1,  23  Am.  Dec.  654;  Vent  v.  ley  v.  Pratt,  23  Vt.  378;  Earle  v.  Reed, 
Osgood,  19  Pick.  572,  575:  Gay  v.  Bal-  10  Mete.  (Mass.)  387;  Ayers  v.  Burns 
lou,  supra;  Parsons  v.  Keys.  43  Tex.  (1882),  87  Ind.  245. 

557;  Hyman  v.  Cain,  3  Jones  (N.  G), 

113 


CH.  III.]  CAPACITY    OF   PARTIES.  [§  124:. 

haps  in  writing,  stipulating  for  a  fixed  sura,  absolutely  void,  or 
voidable  only  as  to  the  amount  agreed  upon  ?  and,  Is  the  infant 
to  be  held  for  the  reasonable  value  on  the  express  contract 
modified  to  this  extent,  or  only  upon  the  contract  implied  or 
created  by  law,  the  express  contract  being  ignored  ?  Upon 
these  questions  the  courts  are  not  entirely  agreed,  but  the  true 
rule  seems  to  be  that  which  is  well  stated  by  Mr.  Parsons1  as 
follows:  "  He  cannot  contract  to  pay  even  for  necessaries,  in 
such  wise  as  to  bar  an  inquiry  into  the  price  and  value.  The 
law  permits  persons  to  supply  him  with  necessaries,  and  have 
a  valid  claim  against  him  therefor,  for  their  fair  worth ;  but  it 
does  not  permit  them  to  make  a  bargain  with  him  as  to  the 
price  which  shall  bind  him  absolutely,  because  it  does  not  per- 
mit him  to  determine  this  price  for  himself  by  reason  of  his 
presumed  inability  to  take  proper  care  of  his  own  interests ;  but 
the  value  and  the  price  may  be  determined  by  a  jury.  And  a 
seal  to  the  instrument  would  give  it  no  additional  force  in  this 
respect,  but  the  infant  would  still  be  bound  only  for  a  fair 
value.  For  the  same  reason  an  infant  cannot  be  bound  for  the 
amount  in  an  account  stated ; 2  nor  for  the  sum  mentioned  in  his 
note,  although  given  for  necessaries;3  nor  for  the  amount  due 
on  his  bond,  for  the  ancient  distinction  which  held  him  on  a 
bond  without  a  penalty,  but  not  a  bond  with  a  penalty,  would 
probably  be  now  disregarded.4     If,  however,  an  infant  gives 

i  Parsons    on    Contracts,    vol.     I,  Deal,  3  McCord  (S.  C),  257.     "Some 

p.  *313.  of  these  cases  declare  an   infant's 

2  Citing  Ingledew  v.  Douglas,  2  note,  though  given  for  necessaries, 
Stark.  (Eng.)  36;  Trueman  v.  Hurst,  void,  but  it  is  conceived  they  mean 
1  T.  R.  (Eng.)  40;  Hedgley  v.  Holt,  voidable  only,  and  not  that  such  note 
4  C.  &  P.  (Eng.)  104;  Oliver  v  Wood-  is  not  susceptible  of  ratification." 
roffe,  4  M.  &  W.  (Eng.)  650;  Williams  4  "The  older  cases,"  says  Mr.  Par- 
v.  Moor,  11  id.  256;  Beeler  v.  Young,  sons  in  his  note,  "hold  that  an  in- 
1  Bibb  (Ky.),  519.  fant's  bond,  at  least  if  given  with  a 

3  Citing  McCrillis  v.  How,  3  N.  H.  penalty,  is  absolutely  void,  not  void- 
348;  Bouchell  v.  Clary,  3  Brev.  (S.  C.)  able  merely,  although  given  for 
194;  Swasey  v.  Vanderheyden,  10  necessaries.  Ayliff  v,  Archdale,  Cro. 
Johns.  (N.  Y.)  33;  Fenton  v.  White,  Eliz.  (Eng.)  920;  Fisher  v.  Mowbray,  8 
1  South.  (N.  J.)  100;  McMinn  v.  Rich-  East  (Eng),  330;  Baylis  v.  Dinely, 
monds,  6  Yerg.  (Tenn.)  9;  Hanks  v.  3    M.  &  Sel.  (Eng.)  447;  Hunter  v. 

119 


§  124.] 


LAW    OF    SALE. 


[book 


his  note,  his  bond,  or  any  other  instrument,  for  necessaries,  he 
may  be  sued  upon  the  instrument,  but  the  plaintiff  shall  recover 
only  the  value  of  the  necessaries." 1 

This  rale  preserves  to  the  infant  the  benefit  of  the  contract, 
if  any,  as  where  he  has  secured  favorable  terms  or  a  low  price, — 
as  to  which  the  adult  seller  will  be  bound,—  while  protecting 
him,  if  he  has  made  a  bad  bargain,  against  the  consequences  of 
his  own  indiscretion.3 


Agnew.  1  Fox  &  S.  (Ire.)  15;  Allen 
v.  Minor,  2  Call  (Va.),  70;  Colcock  v. 
Ferguson,  3  Desaus.  (S.  C.)  482.  It  is 
conceived,  however,  that  in  this 
country,  bonds,  like  other  contracts, 
are  only  voidable,  and  may  be  rati- 
fied. Conroe  v.  Birdsal],  1  Johns.  (N. 
Y.)  Cas.  127  (1  Am.  Dec.  105).  The 
marginal  note  to  this  case  errone- 
nously  uses  the  word  void  in  relation 
to  such  bond;  the  court  said  it  w^as 
only  voidable." 

1  Citing  Earle  v.  Reed,  10  Mete. 
(Mass.)  387;  Dubose  v.  Wheddon,  4 
McCord  (S.  C),  221. 

2  In  Stone  v.  Dennison,  13  Pick. 
(Mass.)  1,  23  Am.  Dec.  654,  Shaw,  Ch. 
J.,  says:  "Most  of  the  cases  where  it 
has  been  decided  that  a  minor  can- 
not be  held  on  his  express  contract 
for  necessaries  are  those  where  the 
action  is  founded  on  the  express  obli- 
gation, and  where,  from  the  form  of 
the  action,  the  consideration  cannot 
be  inquired  into.  As,  an  action  on  a 
bond  with  a  penalty,  which  implies 
a  consideration,  and  where  an  in- 
quiry into  the  consideration  is  pre- 
cluded by  the  forms  of  pleading  and 
proof.  So  on  an  insimul  computas- 
sent,  where  the  action  is  founded 
upon  the  act  of  accounting  and  the 
admission  of  the  balance,  and  no 
further  inquiry  into  the  considera- 
tion and  terms  of  the  contract  can  be 


gone  into.  These  actions  are  founded 
on  the  assumption  that  the  party 
has  full  power  to  bind  himself  by 
any  lawful  contract,  and  they  only 
open  the  question  whether  he  has  so 
bound  himself.  But  in  the  other 
forms  of  obligation  and  of  action, 
and  where  it  can  always  be  open  to 
inquiry  what  the  nature  and  terms 
of  the  contract  were,  and  whether 
the  contract  was  reasonable  and  ben- 
eficial, a  minor  may  as  well  be  bound 
by  an  express  as  by  an  implied  con- 
tract for  necessaries.  This  is  often 
beneficial  to  the  minor,  and  enables 
him  to  avail  himself  of  any  stipula- 
tions in  his  favor.  If  such  an  ex- 
press contract  should  be  held  to  be 
wholly  void,  and  the  party  furnish- 
ing the  minor  with  necessaries  should 
be  remitted  to  his  action  on  the  im- 
plied contract,  he  would  recover 
upon  a  quant  um  valebant  or  quantum 
meruit,  though  above  the  stipulated 
prices.  The  rule  as  above  qualified, 
that  the  minor  shall  only  be  bound 
by  such  a  species  of  express  contract, 
and  in  such  a  form  of  action,  as  leaves 
the  nature,  terms  and  consideration 
of  the  contract  open  to  inquiry,  and 
then  only  by  such  a  contract  as  shall 
appear  at  the  time  to  have  been  fair, 
reasonable  and  beneficial  to  the 
minor,  affords  a  sufficient  security 
to  the  rights  of  minors." 


120 


CH.  III.]  CAPACITY    OF   PARTIES.  [§§  125-127. 

§  125.  Interest. —  Where  the  infant  is  held  chargeable 

upon  his  note  for  necessaries,  interest  may  be  allowed  on  the 
amount  due.1 

§  126. Goods  must  have  been  furnished  on  infant's 

account  and  at  his  request. —  While  an  express  contract  is 
not  necessary,  and  the  infant  may  be  charged  upon  an  implied 
agreement  to  pay,  it  is  still  essential  that  the  goods  should  have 
been  furnished  on  the  infant's  account,  upon  his  credit,  and  at 
his  request,  either  express  or  implied.  If,  therefore,  the  goods, 
though  supplied  for  the  infant,  were  furnished  in  reliance  upon 
the  credit  of  his  parent,  guardian  or  other  third  person,  the 
infant  is  not  liable,2  in  the  absence  of  a  sufficient  ratification 
or  promise  by  him  after  he  arrives  at  maturity.3  The  fact  that 
the  parent  or  other  person  upon  whose  credit  the  goods  were 
furnished  is  too  poor  to  be  able  to  pay  for  them  himself,  does 
not  render  the  infant  liable.4 

§  127.  Infant  not  liable  if  already  supplied. —  If  the 

needs  of  the  infant  are  already  supplied  from  any  source,  then 
he  is  not  liable,  on  the  ground  of  necessaries,  for  further  goods 
furnished,  notwithstanding  that  the  goods  were  such  as  would, 
in  the  absence  of  such  a  previous  supply,  have  been  properly 
regarded  as  necessaries.5  It  is  immaterial  from  what  source 
the  necessaries  have  come,  if  the  infant  be  actually  supplied.6 

1  Bradley  v.  Pratt,  23  Vt.  378.  Dec.  612;  Guthrie  v.  Murphy,  4  Watts 

2  Duncomb  v.  Tickridge,  Aleyn,  94;  (Pa.),  80,  28  Am.  Dec.  681 ;  Johnson  v. 
Simms  v.  Morris,  5  Ala.  42;  Hoyt  v.  Lines,  6  Watts  &  S.  (Pa.)  80,  40  Am. 
Casey,  114  Mass.  397, 19  Am.  R  371.  Dec.   542;   Kline  v.  L'Amoureux,  2 

3  See  Hoyt  v.  Casey,  supra.  Paige  (N.  Y.),  419,  22  Am.  Dec.  652; 

4  Hoyt  v.  Casey,  supra.  Hoyt  v.   Casey,   114    Mass.    397,    19 
5Bainbridge    v.    Pickering,  2  W.     Am.  R.  371;  Decell  v  Lewenthal,  57 

Black.    1325;    Ford      v.    Fothergill,  Miss.  331,  34  Am.  R  449;  Trainer  v. 

Peake,  N.  P.  229;  Brayshaw  v.  Eaton,  Trumbull,  141  Mass.  527,  6  N.  E.  R 

5  Bing.  N.  C.  231;  Cook  v.  Deaton,  761;  Nichol  v.  Steger,  2  Tenn.  Ch. 

3  Car.  &  P.  114;  Barnes  v.  Toye,  L.  R.  328;  affirmed,  6  Lea  (Tenn.),  393. 
13  Q.  B.  Div.  410;  Johnstone  v.  Marks,        6  In  Burghart  v.  Angerstein,  6  Car. 

19  id.  509;    Angel  v.   McLellan,  16  &  P.  690, Baron  Alderson  said :  "If  a 

Mass.  28,  8  Am.  Dec.  118;  Hull  v.  minor  is  supplied,  no  matter  from 

Connolly,  3  McCord  (S.  C),  6, 15  Am.  what  quarter,  with  necessaries  suit- 

121 


§  128.] 


LAW  OF  SALE. 


[BOOK  I. 


If  he  be  partly  supplied,  then  the  additional  goods  can  be 
deemed  necessaries  only  so  far  as  they  supply  the  need  not 
provided  for.1  The  mere  fact,  however,  that  the  infant  has  an 
income  sufficient  to  enable  him  to  supply  himself  with  neces- 
saries will  not  defeat  a  recovery  if  he  was  not  in  fact  supplied.2 
Where,  however,  the  infant  has  been  furnished  with  money  for 
the  purpose  of  supplying  himself  with  necessaries,  the  creditor 
must,  it  is  said,  take  the  burden  of  showing  that  the  infant  has 
not  supplied  himself.3 

§  128.  Seller  supplies  goods  at  Ins  peril.  —  A  person 


who  supplies  goods  to  an  infant  on  his  account  as  necessaries 
does  so  at  his  peril,  taking  upon  himself  the  risk  of  being  able 
to  prove  that  they  were  in  fact  necessaries.4  Mere  inquiry  or 
reasonable  belief  will  not  protect  him;  for,  notwithstanding 
this,  it  becomes  always  a  question  of  fact  whether  the  goods 
were  necessaries  or  not,  and  if  they  were  not,  the  seller  must 
fail,  however  diligent  his  inquiries  may  have  been.5 


able  to  his  estate  and  degree,  a 
tradesman  cannot  recover  for  any 
other  supply  made  to  the  minor  just 
after." 

1  So,  no  recovery  can  be  had  for 
goods,  proper  in  kind,  but  excessive 
in  quantity.  Johnson  v.  Lines,  6 
Watts  &  S.  (Pa.)  80,  40  Am.  Dec.  542. 

2  Burghart  v.  Hall,  Mees.  &  W. 
727. 

3  Rivers  v.  Gregg,  5  Rich.  (S.  C.)  Eq. 
274;  Nicholson  v.  Wilborn,  13  Ga.  4G7. 

*  Barnes  v.  Toye,  L.  R.  13  Q.  B.  Div. 
410;  Brayshaw  v.  Eaton,  5  Bing.  N. 
C.  231;  Cook  v.  Deaton,  3  Car.  &  R 
114;  Burghart  v.  Angerstein,  6  id.  690. 
In  Trainer  v.  Trumbull  (1886),  141 
Mass.  527,  6  N.  E.  R.  761,  the  court 
said  that  the  question  whether  the 
articles  furnished  were  necessaries 
or  not  "  must  be  determined  by  the 
actual  state  of  the  case,  and  not  by 
appearances.  That  is  to  say,  an  in- 
fant who  is  already  well  provided 


for  in  respect  to  board,  clothing,  and 
other  articles  suitable  for  his  con- 
dition, is  not  to  be  held  responsible 
if  any  one  supplies  to  him  other 
board,  clothing,  etc.,  although  such 
person  did  not  know  that  the  infant 
was  already  well  supplied.  Angel  v. 
McLellan,  16  Mass.  28;  Swift  v.  Ben- 
nett, 10  Cush.  436;  Davis  v.  Caldwell, 
12  Cush.  512:  Barnes  v.  Toye,  13  Q.  B. 
Div.  410." 

5  In  Johnson  v.  Lines,  6  Watts  & 
S.  (Pa.)  80,  40  Am.  Dec.  542,  Gib- 
son, C.  J.,  says:  "In  Ford  v.  Fother- 
gill,  1  Esp.  211;  S.  c,  Peake's  N.  P. 
Cas.  299,  Lord  Kenyon  ruled  it  to  be 
incumbent  on  the  tradesman,  before 
trusting  to  an  appearance  of  neces- 
sity, to  inquire  whether  the  minor 
is  provided  by  his  parents  or  friends. 
That  case  may  be  thought  to  have 
been  shaken  in  Dalton  v.  Gib,  5  Bing. 
N.  Cas.  198,  in  which  it  was  held  that 
inquiry  is  not  a  condition  precedent 


122 


CH. 


III.] 


CAPACITY   OF    PARTIES. 


[§  129. 


129. 


Infant  living  with  parents  or  having  a  guard- 


ian presumed  to  be  supplied. —  Where  the  infant  lives  with 
his  parents,  or  is  supported  by  them,  or  where  he  has  a  guard- 
ian, the  presumption  is  that  his  parents  or  guardian  have  sup- 
plied his  needs.  Although  the  goods  are  to  be  paid  for  out  of 
the  infant's  estate,  yet  the  parent  or  the  guardian,  and  the 
former  particularly,  is,  within  reasonable  limits,  entitled  to 
determine  what  is  suitable  and  desirable  for  the  infant  to  have ; l 
and  if  it  appears  that  he  has  supplied  the  infant  with  such  ar- 
ticles as  he  regards  as  suitable  and  sufficient,2  or  has  furnished 
the  infant  with  money  to  procure  them,3  the  third  person  who 


to  recovery  where  the  goods  seemed 
to  be  necessary  from  the  outward 
appearance  of  the  infant,  though 
the  mother  was  at  hand  and  might 
have  been  questioned;  but  in  Bray- 
shaw  v.  Eaton,  id.  231,  this  was  ex- 
plained to  mean  that,  as  such  an  in- 
quiry is  the  tradesman's  affair,  being 
a  prudential  measure  for  his  own  in- 
formation, the  omission  of  it  is  not 
a  ground  of  nonsuit;  but  that  the 
question  is,  on  the  fact  put  in  issue 
by  the  pleadings,  whether  the  sup- 
ply was  actually  necessary.  It  is 
the  tradesman's  duty  to  know,  there- 
fore, not  only  that  the  supplies  are 
unexceptionable  in  quantity  and 
sort,  but  also  that  they  are  actually 
needed."  See  also  Trainer  v.  Trum- 
bull. 141  Mass.  527,  supra;  Nichol  v. 
Steger,  6  Lea  (Tenn.),  393;  Kline  v. 
L'Amoureux,  2  Paige  (N.  Y.),  419,  22 
Am.  Dec.  652. 

i  See  Hoyt  v.  Casey,  114  Mass.  397, 
19  Am.  R.  371;  Hull  v.  Connolly,  3 
McC.  (S.  C.)  6,  15  Am.  Dec.  612;  Bain- 
bridge  v.  Pickering,  2  W.  Black.  1325. 

2  Hull  v.  Connolly,  supra;  Freeman 
v.  Bridger,  4  Jones  (N.  C),  L.  1,  67 
Am.  Dec.  258;  Perrin  v.  Wilson,  10 
Mo.  451. 

3  Rivers  v.  Gregg,  5  Rich.  (S.  C.) 

1 


Eq.  274;   Nicholson  v.  Wilborn,   13 
Ga.  467. 

In  Rivers  v.  Gregg,  supra,  it  is 
said:  "The  general  rule  certainly  is 
that  an  infant  is  bound  by  his  con- 
tract for  necessaries.  But  there  are 
exceptions  equally  clear  and  well 
settled.  Necessaries,  when  the  term 
is  applied  to  an  infant,  are  those 
things  that  are  conducive  and  fairly 
proper  for  his  comfortable  support 
and  education,  according  to  his  for- 
tune and  rank.  So  that  what  would 
be  considered  necessary  in  one  case 
would  not  be  so  regarded  in  another. 
The  rule  is  entirely  relative  in  its 
operation.  But  what  are  necessa- 
ries? Meat,  lodging,  clothing,  and 
education,  if  the  means  admit  of  it, 
certainly  fall  within  the  definition. 
To  which  may  be  added,  in  case  of 
marriage,  the  support  of  wife,  chil- 
dren and  servants.  All  is  relative 
and  is  regulated  by  circumstances. 
But  if  an  infant  is  furnished  with 
these  things  by  his  parent  or  guard- 
ian, then  the  same  articles,  to  the 
same  or  a  less  amount,  supplied  by 
another  under  contract,  are  not  nec- 
essary to  him.  To  another,  not  so 
supplied,  they  would  be  necessaiy. 
The  same  remarks  apply,  with  equal 
23 


§  129.] 


LAW    OF    SALE. 


[book 


would  charge  the  infant  for  other  things  as  necessaries  must 
be  prepared  to  prove  that  they  were  such. 

This  rule  does  not  make  the  fact  of  the  infant's  living  with 
his  parents  or  having  a  guardian  the  absolute  criterion,  or 
make  the  parent  or  guardian  the  sole  judge,  or  justify  him  in 


propriety  and  force,  where  the  in- 
fant is  supplied  by  parent  or  guard- 
ian, or  by  this  court,  with  money  to 
furnish  himself  with  necessaries.  In 
some  cases  circumstances  make  it 
proper,  and  imperatively  demand, 
that  the  infant  should  have  the  dis- 
bursement of  his  allowance  himself. 
In  the  case  of  marriage  and  house- 
keeping the  perpetual  .recurring 
wants  and  exigencies  of  the  family 
render  it  impossible  that  the  guard- 
ian should  always  be  called  on  to 
supervise  the  disbursement  of  the 
fund  allowed  to  the  infant.  Or  if, 
being  a  youth  of  fortune,  he  is  sent 
upon  his  travels  in  foreign  lands,  or 
even  in  his  own  country,  the  guard- 
ian cannot  look  to  the  expenditure 
of  the  money.  It  is  necessarily  in- 
trusted to  his  own  keeping.  The 
brother  of  the  deceased  is  now 
abroad  on  his  European  travels. 
Previous  to  his  departure  an  appli- 
cation was  made  to  this  court  for  a 
proper  allowance  to  defray  his  trav- 
eling expenses.  The  court,  upon  due 
consideration,  made  an  order  for 
what  was  supposed  to  be  a  proper 
allowance,  reference  being  had  to 
the  amount  of  his  fortune.  Suppos- 
ing this  young  gentleman  should  ex- 
pend his  allowiince,  and  in  addition 
should  contract  debts  to  the  same 
amount  for  articles  that,  prima 
facie,  would  be  regarded  as  neces- 
saries! Could  these  claims  be  sup- 
ported on  its  being  shown  that  the 
infant  had  an  allowance  that  was 
amply  sufficient  to   defray  all  his 


necessary  and  proper  expenses?    I 
suppose  not. 

"  He  who  deals  with  an  infant  is 
presumed  to  know  of  his  infancy. 
He  is  bound,  at  his  own  peril,  to 
make  the  inquiry.  It  makes  no  dif- 
ference whether  the  inquiries  result 
in  correct  information  or  the  reverse. 
It  is  no  excuse  if  he  honestly  sup- 
posed from  his  appearance  or  other 
circumstances  that  the  infant  was 
an  adult.  The  protection  of  this  de- 
fenseless class  of  persons  would  be 
very  inadequate  if  this  principle  is 
not  further  extended.  The  only  safe 
rule  for  the  security  of  infants  and 
their  estates  is  that  he  who  credits 
the  infant  for  necessaries  should  be 
bound  to  know  whether  the  infant 
has  been  supplied  with  a  sufficient 
amount  of  those  articles  by  the  par- 
ent or  guardian,  or  from  some  other 
source.  The  consequence,  if  any 
other  rule  than  this  prevails,  would 
be,  that  an  infant's  estate  might  be 
made  liable  for  double  the  amount 
of  necessaries  that  were  necessary  for 
him. 

"  I  will  not  say  that  an  infant,  after 
being  supplied  with  necessaries,  or  a 
proper  allowance  in  cash  to  procure 
them,  may  not,  under  some  circum- 
stances, be  liable  on  a  contract  for 
necessaries.  Suppose,  for  example, 
after  being  furnished  with  all  things 
necessary  for  him,  he  should  give 
them  away,  or  sell  them,  or  waste 
the  proceeds  in  riot  and  debauchery. 
Or  suppose,  that  after  having  placed 
in  his  hands,  in  money,  an  allowance 
.24 


en.  in.] 


CAPACITY    OF    PARTIES. 


[§  129. 


leaving  the  infant  to  suffer,1  but  it  affords  a  presumption,  gen- 
erally well  founded,  which  the  person  who  supplies  more  goods 
must  rebut. 

The  same  presumption  arises  where  the  infant  lives  with  his 
mother,  though  the  latter  be  not  under  the  same  legal  duty  to 
support  the  infant  that  the  father  would  be.2 

The  presumption  also  arises,  and  the  same  rule  applies,  not- 
withstanding the  mere  fact  that  the  father  is  poor,  unless  it 
also  appears  that  he  has  refused  or  neglected  to  provide  for 
the  infant.3 


sufficient  for  all  his  wants,  he  should 
be  robbed  of  it,  or  should  lose  it  by- 
accident  or  at  games  of  chance. 
Then  the  infant  would  be  reduced  to 
want  for  the  means  of  bare  subsist- 
ence. Must  he  starve  with  a  plenty 
in  his  coffers?  Would  he  not  be 
bound  by  a  contract  for  necessaries 
under  these  circumstances?  This  is 
stating  the  strongest  imaginable  case 
against  the  rule.  But  its  wisdom  is 
still  manifest.  In  a  case  like  that 
supposed,  I  would  say  that  the  in- 
fant would  be  bound.  But  I  would 
further  say  that  the  party  who  al- 
leged this  extraordinary  state  of  facts 
must  prove  them.  In  other  words, 
when  it  is  shown  that  an  infant  is 
supplied  with  necessaries  by  his  par- 
ent or  guardian,  or  with  funds  amply 
sufficient  to  procure  them,  the  pre- 
sumption of  law  and  of  reason  must 
be,  that  he  does  not  stand  in  need  of 
credit  to  obtain  what  is  necessary 
for  him.  And  after  this  prima  facie 
showing,  he  who  alleges  that,  not- 
withstanding this,  the  infant  was  in 
a  state  of  destitution,  must  take  upon 
himself  the  burthen  of  proving  the 
allegation.  If  he  does  this  in  a  sat- 
isfactory manner,  his  claim  should 
be  allowed.  But  even  then  it  should 
be  limited  to  bare  necessaries,  and 
should  not  be  allowed  to  embrace 


articles  of  luxury,  which  would  oth- 
erwise be  suitable  to  the  infant's 
fortune  and  condition  in  life." 

1  In  Trainer  v.  Trumbull  (1886),  141 
Mass.  527,  6  N.  E.  R.  761,  the  defend- 
ant was  a  minor  who  had  an  ex- 
pectant estate  of  about  $10,000  accru- 
ing upon  his  father's  death.  His 
father  was  an  inmate  of  a  soldiers' 
home,  his  mother  had  been  com- 
mitted to  a  reformatory  institution, 
and  the  defendant  himself  was  in  an 
almshouse  and  was  in  a  diseased  and 
sickly  condition.  Defendant  had  a 
guardian,  but  the  guardian  did  noth- 
ing for  his  support.  The  plaintiff,  at 
the  request  of  defendant's  father, 
and  in  reliance  upon  defendant's  ex- 
pectancy, took  defendant  from  the 
almshouse  to  his  own  home,  and 
cared  for  and  educated  him  until  the 
father's  death,  when  she  brought  an 
action  to  recover  for  the  supplies 
furnished.  The  defense  was  that  as 
defendant  was  supplied  at  the  alms- 
house with  necessaries  according  to 
his  then  position  in  life,  that  of  a 
pauper,  the  supplies  furnished  by 
plaintiff  were  not  necessaries.  But 
the  court  held  otherwise. 

2  Hull  v.  Connolly,  3  McC.  (S.  C.)  6, 
15  Am.  Dec.  612.  See  also  Atchison 
v.  Bruff,  50  Barb.  (N.  Y.)  381. 

s  Hoyt  v.  Casey,  114  Mass.  397,  19 


125 


§  130.] 


LAW    OF    SALE. 


[BOOK    I. 


§  130.  What  constitute  necessaries. — The  term  "necessaries" 
is  a  relative  one,  and  no  arbitrary  or  inflexible  rule  can  be  laid 
down  for  determining  whether  an}'  given  article  falls  within 
its  meaning  or  not.1  The  most  comprehensive  statement  is  that 
the  term  includes  those  things  which  are  suitable  and  proper 
for  the  reasonable  comfort,  subsistence  and  education  of  the 
particular  infant,  taking  into  consideration  his  circumstances 
and  condition  in  life.2  It  therefore  clearly  is  not  to  be  con- 
fined in  its  meaning  to  those  things  which  are  absolutely  in- 


Am,  R.  371.  In  this  case  it  is  said: 
"  We  are  of  the  opinion  that  the  in- 
struction to  the  jury  that  the  pov- 
erty of  the  father  would  not  be  suf- 
ficient to  render  the  son  liable  for 
necessaries  furnished  to  him,  but 
that  the  plaintiff  must  go  further 
and  show  a  refusal  or  neglect  of  the 
father  to  furnish  them,  was  suffi- 
ciently favorable  to  the  plaintiff.  An 
infant  when  residing  at  home,  and 
under  the  care  of  his  father  and  sup- 
ported by  him,  is  not  liable  even  for 
necessaries.  If  he  were,  the  father 
would  be  deprived  of  his  right  to  de- 
termine what  the  character  of  that 
support  should  be.  Bainbridge  v. 
Pickering,  2  W.  BL  1325,  1  Esp.  N.  P. 
163;  Wailing  v.  Toll,  9  Johns.  141; 
Angel  v.  McLellan,  16  Mass.  28.  Nor 
do  we  think  that  a  case  can  be  ex- 
cepted from  this  well-recognized 
principle  because  the  father  is  found 
to  be  a  poor  man.  When  necessary 
professional  services  are  rendered  to 
a  minor  son  residing  in  the  house  of 
his  father,  the  legal  inference  is  that 
the  father  is  the  person  liable  there- 
for. In  the  present  case  the  father 
was  keeping  a  family  together,  and 
was  receiving  the  wages  of  this 
minor.  While  it  was  proved  that 
he  was  unable  to  pay  the  debts  he  had 
incurred,he  was,  so  far  as  it  appeared, 


doing  his  best  with  the  means  at  his 
command  to  provide  for  his  family. 
No  refusal  or  neglect  to  perform  his 
duty  of  supporting  the  son  was 
shown,  although  from  his  impover- 
ished condition  it  may  perhaps  be 
fairly  inferred  that  such  duty  could 
be  but  imperfectly  performed.  Or- 
dinarily when  one  renders  to  another 
valuable  service,  the  law  will  imply 
a  promise  to  pay  therefor  by  him  for 
whom  such  service  is  rendered,  and 
this  upon  the  ground  that  as  such 
party  cannot  infer  service  of  this 
character  to  be  gratuitous,  it  must 
be  implied  that  he  promised  to  pay 
for  it;  but  no  such  implication  can 
arise  against  a  minor  residing  with 
his  father,  delivering  over  to  him  his 
wages,  and  entitled  to  look  to  him 
for  support." 

1  Epperson  v.  Nugent,  57  Miss.  45, 
34  Am.  R.  434. 

2  Burghart  v.  Angerstein,  6  C.  &  P. 
690;  Dalton  v.  Gib,  7  Scott,  117; 
Peters  v.  Fleming,  6  M.  &  W.  42; 
Ryder  v.  Wombwell.  L.  R.  4  Ex.  32; 
Rivers  v.  Gregg,  5  Rich.  (S.  C.)  Eq. 
274;  Epperson  v.  Nugent,  supra; 
Davis  v.  Caldwell,  12  Cush.  (Mass.) 
512;  Nicholson  v.  Spencer,  11  Ga.  607; 
Jordan  v.  Coffield,  70  N.  G  110; 
Strong  v.  Foote,  42  Conn.  203. 


126 


CH.  III.]  CAPACITY   OF    PARTIES.  [§  131. 

dispensable  to  the  support  of  life,1  but  it  extends  to  those  arti- 
cles which  are  suitable  and  proper  to  maintain  the  infant  in 
that  state,  station  and  degree  of  life  in  which  he  is  placed. 
Articles  of  comfort  and  convenience  may  therefore,  in  some 
cases,  be  deemed  necessaries,  and,  in  some  cases  perhaps,  things 
purely  ornamental.2  "  Articles  of  mere  luxury  are  always  ex- 
cluded, though  luxurious  articles  of  utility  are  in  some  cases 
allowed."3 

The  term,  however,  it  is  said,  includes  those  things  only  which 
are  personal  to  the  infant,4  and  does  not  ordinarily  include  such 
things,  however  desirable  or  beneficial,  as  pertain  only  to  his 
property  or  estate.5  For  matters  of  the  latter  sort  the  inter- 
vention of  a  guardian  is  usually  held  requisite,  though  some 
cases  have  extended  the  rule  to  include  those  things  also  which 
are  necessary  for  the  preservation  of  his  estate.6 

Fuller  illustrations  of  the  application  of  the  rules  will  be  found 
in  a  later  section. 

§  131.  How  question  determined  —  Burden  of  proof. 

The  question  whether  the  goods  in  controversy  in  any  case 
fall  under  the  head  of  necessaries,  is  usually  one  of  mixed  law 
and  fact,  and,  as  to  the  respective  provinces  of  the  court  and 
jury,  the  rule  has  been  laid  down  as  follows:  "The  court  de- 
termines whether  the  articles  furnished  fall  within  the  class 

1  Peters  v.  Fleming,  supra,  per  ers,  and  qualifying  the  individual  to 
Parke,  B.  engage  in  business  when  he  shall  ar- 

2  Ryder  v.  Wombwell,  supra,  per  rive  at  the  age  of  manhood." 
Willes,  J.  5  See,  as  to  this,  Turner  v.  Gaither, 

3  Chappie  v.  Cooper,  13  Mees.  &  W.  83  N.  C.  357,  35  Am.  R.  574;  Tupper 
(Eng.)  252,  per  Alderson,  B.  v.  Cadwell,  supra;  Middlebury  Col- 

4  Thus  in  Tupper  v.  Cadwell,  12  lege  v.  Chandler,  16  Vt.  683,  42  Am. 
Mete.  (Mass.)  559,  46  Am.  Dec.  704,  Dec.  537;  Mathes  v.  Dobschuetz.  72 
Dewey,  J.,  says:  "The  wants  to  be  111.  438;  Price  v.  Sanders,  60  Ind.  310. 
supplied  are,  however,  personal;  6See,  as  to  this,  Epperson  v.  Nugent, 
either  those  of  the  body,  as  food,  57  Miss.  45,  34  Am.  R.  434;  Dillon  v. 
clothing,  lodging,  and  the  like;  or  Bowles,  77  Mo.  603. 

those  necessary  for  the  proper  culti-        Mr.  Bishop  says  the  other  rule  is 
vation  of  the  mind,  as  instruction    "contrary    to    reason."     Contracts, 
suitable  and  requisite  to  the  useful    §  911. 
development  of  the  intellectual  pow- 

127 


§  132.]  LAW  OF  SALE.  [BOOK  I. 

of  necessaries  suitable  to  any  one  (infant  or  adult)  in  the  de- 
fendant's situation  and  condition  of  life;  and  if  the  court  de- 
cides that  they  do  come  within  the  class,  the  jury  are  to  decide 
whether  the  particular  articles  furnished  were  actually  neces- 
sary under  the  circumstances  of  the  case." l  The  court  quote, 
with  approval,  the  rule  as  laid  down  by  Bibb,  C.  J.,  as  follows: 
"  Whether  the  articles  are  of  those  classes  for  which  an  infant 
shall  be  bound  to  pay  is  matter  of  law  to  be  judged  of  by 
the  court;  if  they  fall  under  those  general  descriptions,  then, 
whether  they  were  actually  necessary  and  suitable  to  the  con- 
dition and  estate  of  the  infant,  and  of  reasonable  prices,  must 
regularly  be  left  to  the  jury  as  matter  of  fact."2 

As  to  the  burden  of  proof  something  has  been  already  seen,3 
and,  in  general,  the  burden  of  proving  that  the  goods  were 
such  necessaries  that  the  infant  might  bind  himself  to  pay  for 
them  is  upon  the  plaintiff.4 

§  132.  Illustrations  of  what  are  necessaries  or  not. 

Lord  Coke  laid  down  the  rule  that  "  An  infant  may  bind  him- 
self to  pay  for  his  necessary  meat,  drinke,  apparell,  necessary 
physicke,  and  such  other  necessaries,  and  likewise  for  his  good 
teaching  or  instruction,  whereby  he  may  profit  himselfe  after- 
wards." 5  Clearly,  within  the  rules  already  laid  down,  food  is 
a  necessary,6  and  board,  as  while  attending  school.7  Enter- 
tainment at  an  inn  may  also  be,8  but  not,  ordinarily,  are  din- 
ners, confectionery  and  fruit  furnished  to  a  student  in  college,9 

iDecell  v.  LewenthaL  57  Miss.  331,  N.  W.  R.  557;  Thrall  v.  Wright,  38 
34  Am.  R  449.  Vt.  494;  Nicholson  v.  Wilborn,  13  Ga. 

*  Beeler  v.  Young,  1  Bibb  (Ky.),  519.     4G7. 

See  also  Tupper  v.  Cadwell,  12  Mete.  5  Coke,  Lit.  172a. 

(Mass.)  559,  46  Am.  Dec.  704;  Grace  6  Rivers  v.  Gregg,  5  Rick  (S.  C.)  Eq. 

v.  Hale,  2  Humph.  (Tenn.)  27,  36  Am.  274. 

Dec.  296;  Jordan  v.  Coffield,  70  N.  C.  7  Kilgore  v.  Rich,  83  Me.  305,  23  Am. 

110;  Garr  v.  Haskett,  86  Ind.  373;  St.  R  780,  12LE.A.  859,  22  Atl.  R. 

Ayers  v.   Burns,   87    Ind.   245;    Mo  176. 

Kanna  v.  Merry,  61  111.  177;  Bent  v.  8See  Watson  v.   Cross,  2  Duvall 

Manning,  10  Vt.  225.  (Ky),  147. 

3  See  ante,  §  128.  9 Brooker  v.  Scott,  11  M.  &  W.  67. 

*  Wood  v.  Losey,  50  Mich.  475,  15 

128 


CH.  III.] 


CAPACITY    OF   PARTIES. 


[§  132. 


though  fruit  or  other  like  articles  might  be  in  case  of  ill- 


ness. 


Medical  attendance,2  nursing  in  sickness,3  and  dental  serv- 
ices 4  fall  within  the  list  of  necessaries,  and  so  do  proper  lodg- 
ings,5 though,  ordinarily,  repairs  upon  his  dwelling-house,6  and 
labor  and  material  for  the  erection7  of  a  dwelling  or  insurance 
upon  it,8  do  not. 

A  common  school  education  is  necessary,9  but  not  usually  a 
college  education ; 10  nor,  it  is  held,  can  a  professional  education 
be  regarded  as  necessary,11  though  this  may  be  questionable. 

Suitable  clothing,12  in  reasonable  quantities,"  is  necessary,  but 
not  when  extravagant  in  kind  or  excessive  in  quantity.  In 
proper  circumstances,  livery  for  the  infant's  servant  may  be 
included,14  and,  in  perilous  times,  regimentals  for  the  infant 
himself,15  but  not  cockades  for  the  soldiers  of  the  company  of 
which  he  is  captain.16  Wedding  garments  may  also  be  neces- 
sary for  the  infant's  marriage.17 


1  Wharton  v.  Mackenzie,  5  Q.  B. 
606. 

2  See  Hoyt  v.  Casey,  114  Mass.  397, 
19  Am.  E.  371;  Wailing  v.  Toll.  9 
Johns.  (N.  Y.)  141;  Saunders  v.  Ott, 
1  McCord  (S.  C),  572;  Price  v.  Saun- 
ders, 60  Ind.  310. 

» Werner's  Appeal,  91  Pa.  St.  222. 

4  Strong  v.  Foote,  42  Conn.  203. 

5  See  Rivers  v.  Gregg,  5  Rich.  (S.  C.) 
Eq.  274.  278;  Price  v.  Sanders,  60  Ind. 
310. 314. 

6Tupperv.Cadwell.  12  Mete.  (Mass.) 
559,  46  Am.  Dec.  704;  Wallis  v.  Bard- 
well,  126  Mass.  366;  Phillips  v.  Lloyd 
(1892),  18  R.  I.  99,  25  Atl.  R  909. 

7  Freeman  v.  Bridger,  4  Jones  (1ST. 
C),  L.  1,  67  Am.  Dec.  258;  Price  v. 
Sanders,  60  Ind.  310;  Wornock  v. 
Loar  (Ky.),  11  S.  W.  R  438:  Allen  v. 
Lardner  (1894),  78  Hun  (N.  Y.),  603. 

8  New  Hampshire  Ins.  Co.  v.  Noyes, 
32  N.  H.  345. 


9  See  Middlebury  College  v.  Chand- 
ler, 16  Vt.  683,  42  Am.  Dec.  537. 

10  Middlebury  College  v.  Chandler, 
supra. 

ii  Turner  v.  Gaither,  83  N.  C.  357, 
35  Am.  R.  574.  In  Walter  v.  Ever- 
ard,  [1891]  2  Q.  B.  369,  instruction 
in  the  business  of  a  farmer,  auction- 
eer and  valuer  were  held  to  be  nec- 
essaries. 

i2  Chappie  v.  Cooper,  13  M.  &  W. 
252;  Maddox  v.  Miller,  1  M.  &  S.738; 
Barnes  v.  Toye.  13  Q.  B.  Div.  410;  Gay 
v.  Ballou,  4  Wend.  (N.  Y.)  403, 21  Am. 
Dec.  158;  Anderson  v.  Smith,  33  Md. 
465;  Lynch  v.  Johnson  (1894),  109 
Mich.  640,  67  N.  W.  R  908. 

13  Johnson  v.  Lines,  6  W.  &  S.  (Pa.) 
80,  40  Am.  Dec.  542. 

i*  Hands  v.  Slaney,  8  T.  R.  578. 

15  Coates  v.  Wilson,  5  Esp.  152. 

16  Hands  v.  Slaney,  supra. 

17  Jordan  v.  Coffield,  70  N.  C.  110; 
Garr  v.  Haskett,  86  Ind.  373. 


129 


132.] 


LAW  OF  SALE. 


[BOOK  I. 


Jewelry,  ornaments1  and  watches2  are  not  ordinarily  neces- 
saries, though  under  proper  circumstances  a  watch  may  be;3 
and  jewelry  intended  as  a  gift  to  the  betrothed  wife  of  an  in- 
fant of  large  fortune  has  been  regarded  as  necessary.4  Horses 
purchased  for  business5  or  pleasure,6  and  their  keep,7  are  not 
necessaries,  though  it  may  be  otherwise  if  an  infant  has  med- 
ical advice  to  take  exercise  on  horseback;8  nor  are  racing- 
jackets  (unless  the  infant  be  a  jockey),9  or  betting-books.10  In 
case  the  horse  was  necessary,  the  horse  accoutrements  might 
be  necessary  also.11  Traveling  for  pleasure  is  not  a  necessary,12 
though  traveling  for  health  might  be.  Carriages13  and  bicycles11 
are  not  ordinarily  necessaries,  though  in  special  cases  either, 
like  the  horse,  might  be  considered  so.  Tobacco,  pipes  and 
cigars  are  not  necessaries;15  neither  are  " liquor,  pistols, powder, 
saddles,  bridles,  whips,  fiddles,  fiddle-strings,"  etc.16 

Goods  for  use  in  business,17  supplies  for  farming,13  a  horse  to 


i  Ryder  v.  Womb  well,  L.  R  4  Ex.  32. 

2  Berolles  v.  Ramsay,  Holt,  N.  P.  77. 

3  See  Barnes  v.  Toye,  13  Q.  B.  Div. 
410.  414;  Peters  v.  Fleming,  6  M.  & 

w.  4a 

*Jenner  v.  Walker,  19  L.  T.  X.  >. 
398. 

5  Rainwater  v.  Durham,  2  N.  & 
McC.  524.  10  Am.  Dec.  637:  Grace  v. 
Hale.  2  Humph.  (Tenn.)  27.  36  Am. 
Dec.  296;  House  v,  Alexander,  105 
Ind.  109,  4  X.  K  R  891, 55  Am.  R.  189; 
Beeler  v.  Young.  1  Bibb  (Ky.),  519. 

6  See  House  t.  Alexander,  and  other 
cases  in  preceding  note. 

"  Merriam  v.  Cunningham,  11  Cush. 
(Mass.)  40. 

8  Hart  v.  Prater,  1  Jur.  623. 

9  Burghart  v.  Angerstein,  6  Car.  & 
P.  690,  698. 

io  Jenner  v.  Walker,  19  L.  T.  X.  S. 
398. 

ii  See  Hill  v.  Arbon,  34  L.  T.  (X.  S.) 
125. 


i2McKanna  v.  Merry,  61  111.  177. 

13  Howard  v.  Simpkins,  70  Ga.  322. 

uPyne  v.  Wood  (1888),  145  Mass. 
558,  14  N.  E.  R  775.  In  this  case  the 
infant  lived  at  home  but  worked  in 
a  shop  a  mile  away,  and  used  the 
bicycle  to  ride  upon  in  going  home 
to  dinner,  which  he  could  not  do  in 
the  time  allotted  without  it.  (The 
court  cite  Merriam  v.  Cunningham, 
11  Cush.  (Mass.)  40;  Leonard  v.  Stott, 
108  Mass.  46.)  To  same  effect  see 
Clyde  Cycle  Co.  v.  Hargreaves  (1898), 
78  L.  T.  (N.  S.)  296.  See  also  Rice  v. 
Butler  (1899),  160  X.  Y.  578,  55  X.  E. 
R.  275,  47  L.  R.  A.  303. 

15  Bryant  v.  Richardson,  12  Jur. 
.X.  S.)"300. 

16  Saunders  v.  Ott,  1  McCord  (S.  C), 
570;  Price  v.  Sanders,  60  Ind.  310; 
House  v.  Alexander,  105  Ind.  109,  55 
Am.  R  189,  4  X.  E.  R  891. 

i'  House  v.  Alexander,  105  Ind.  109, 
4  X.  E.  R  891,  55  Am.  R  189;  Grace 


i^Decell  v.  Lewenthal,  57  Miss.  331,  34  Am.  R  449;  State  v.  Howard, 

X.  C.  650. 

130 


■CH.   III.]  CAPACITY    OF    PARTIES.  132. 

be  used  in  cultivating  his  land,1  the  keep  of  work-horses,2  even 
though  in  either  case  he  thereby  earns  his  living,  are  not  con- 
sidered as  necessaries. 

Money  borrowed  to  be  used,  and  used  by  the  infant  in  pro- 
curing necessaries,  is  not  a  necessary.3  but  money  directly  ap- 
plied by  the  lender  to  procure  necessaries  for  the  infant  may 
be  recovered:4  and  so.  it  is  held,  may  money  advanced  by  a 
third  person,  at  the  infant's  request,  to  pay  a  bill  previously  in- 
curred by  the  infant  for  necessaries.5  On  the  same  ground,  a 
person  who  signs,  as  surety,  an  infant's  note  for  necessaries  and 
is  compelled  to  pay  it.  may  recover  from  the  infant  as  for  money 
paid  for  his  benefit.6 

Necessaries  furnished  to  the  infant's  wife  and  family  are  nec- 
essaries to  the  infant;7  and  an  infant's  widow  has  been  held 
liable  on  her  contract  to  pay  the  funeral  expenses  of  her  hus- 
band who  left  no  estate.8 

Attorney  and  counsel  fees  are  usually  regarded  as  necessa- 
ries when  required  to  preserve  or  protect  the  infant's  personal 
rights.9    When  rights  of  property  only  are  involved,  it  has  been 

v.  Hale.  2  Humph.  (Term.)  27.  36  Am.  Price  v.  Sanders,  supra;  Marlow  v. 

Dec.  290:   Decell  v.   Lewenthal.   57  Pitfield.  1  P.  Wnis.  558. 

Miss.  331.  34  Am.  R  449:  Rainwater  4  Swift  v.  Bennett.  10  Cush.  (Mass.) 

v.  Durham.  2  X.  &  MeG  524.  10  Am.  436:  Randall  v.  Sweet,  1  Demo  (N.  T.  i. 

Dec.  637:  Rvan  v.  Smith  (1896),  165 

Mass.  303.  43   N.  R  R  109:  Paul  v.  ^Kilgore  v.  Rich.  S3  Me.   305,   22 

Smith,   41    Mo.    App.    275:    Wood  v.  Atl.  R  176,  23   Am  St.  R  7n">.  12  L. 

Losev.  50  Michu  475.  15  N.  W.  R.  557.  R.  A.  - " 

i House  v.  Alexander.  105  Ind.  109,  6  Conn  v    Coburn,  7  N.  H  •:•  -    - 

4  X.  E.  R.  --91.  55  Am.  R.  189;  Wood  Am  Dec  746. 

v.  Losey.  50  Mich,  475,  15  N.  W.  R  :  Cantine  v.  Phillips.  5  Harr.  (DeL) 

557:  Rainwater  v.  Durham,  supra;  42S:  Chapman  v.  Hughes,  61  Miss. 

Grace  v.  Hale,  supra.     But  see  Moh-  339. 

ney  v.  Evans.  51  Pa.  St.  SO.  contra.  *  Chappie  v.  Cooper.  13  Mees.  d:  W. 

-  Merriam  v.  Cunningham,  11  Cush.  252. 

(Mass.)  40.  9  See    Munson    v.  "VTashband.    31 

s  Randall  v.  Sweet.  1  Denio  (N.  Y-),  Conn.  303.  S3  Am.  Dec.  151:  Barker 

460:  Price  v.  Sanders.  60  Ind.  310:  v.  Hibbard,  54  N.  H.  539.  20  Am.  R 

Darbv  v.  Boucher.  1  Salk.  279:  Earle  160:  Epperson  v.  Nugent.  57  Miss.  4-5. 

v.  Peale.  1  Salk.  38  34  Am  R  434:  Englebert  v.  TroxelL 

It   may  be  recovered  in    equity.  40  Neb.  195,  26  L.  R  A  177,  42  Am. 

*  131 


§§  133,  134.]  LAW  OF  SALE.  [BOOK  I. 

held  that  such  fees  were  not  necessaries ;  1  but  the  tendency  is. 
to  regard  them  as  necessaries  in  these  cases  also,  if  tlie  services 
were  beneficial  in  recovering  or  protecting  the  infant's  estate.'2 

b.  Of  the  Incapacity  of  Married  Women. 

§  133.  What  here  considered. —  It  is  not  within  the  prov- 
ince of  such  a  work  as  this  to  enter,  with  any  fullness,  into  a 
consideration  of  the  legal  status  of  the  married  woman,  for 
that  would  require  a  volume.  A  brief  reference  to  the  chief 
outlines  of  the  subject  is  all  which  space  will  permit.  For 
fuller  discussion  recourse  must  be  had  to  the  various  treatises 
which  make  this  question  the  subject  of  exhaustive  treatment. 

§  134.  Common-law  disability. —  At  the  common  law  the 
unmarried  woman,  whether  maid  or  widow,  was  under  no  con- 
tractual disability  by  reason  of  her  sex;  but  the  married  woman, 
by  reason  of  her  coverture,  was,  in  general,  under  a  complete 
disability  to  contract,  or  to  acquire,  hold  or  dispose  of  property 
in  her  own  right.  In  contemplation  of  law,  her  existence  be- 
came merged  in  that  of  her  husband,  her  bargaining  power 
was  lost  in  his,  while  her  personal  property  of  a  tangible  nat- 
ure became  his,  and  her  choses  in  action  also,  if  he  reduced 
them  to  his  possession.  She  could  not,  therefore,  buy  or  sell 
personalty,  or  enter  into  binding  contracts  concerning  it. 

Exception  was  made  for  her  benefit  in  certain  cases  of  pur- 
chase. "  The  first  is,  when  the  husband  is  civiliter  mortuus, 
dead  in  law,  as  when  he  is  under  sentence  of  penal  servitude, 
or  transportation  or  banishment.  The  disability  of  the  wife 
in  such  cases  is  said  to  be  suspended,  for  her  own  benefit,  that 
she  may  be  able  to  procure  a  subsistence.  She  may  therefore 
bind  herself  as  purchaser  when  her  husband,  a  convict  sen- 
tenced to  transportation,  has  not  yet  been  sent  away,  and  also 
when  he  remains  away  after  his  sentence  has  expired.     But 

St.  R.  663,  58  N.  W.  R.  852;  Askey  v.        z  Epperson    v.    Nugent,    supra; 

Williams,  74  Tex.  294,  5  L.  R.  A.  176,     Searcy  v.  Hunter,  81  Tex.  644,  17  S. 

11  S.  W.  R.  1101.  W.  R.  372,  26  Am.  St.  R.  837.     See 

i  Phelps  v.  Worcester,  11  N.  H.  51.    also  Thrall  v.  Wright,  38  Vt.  494    • 

132 


CH.  III.]  CAPACITY    OF    PARTIES.  [§   135. 

not  if  he  abscond  and  go  abroad  in  order  to  avoi&  a  charge 
of  felony."  1 

A  second  exception  was  at  one  time  thought  to  exist  where 
the  husband  was  an  alien  and  resided  abroad  while  she  lived 
in  England  and  purchased  there;  but  this  exception  has  there 
been  discredited.2 

The  third  exception  was  confined  to  the  city  of  London, 
where,  by  custom,  a  married  woman  might  be  a  sole  trader 
and  bind  herself  as  such.3 

§  135.  Equitable  doctrine  concerning  separate  estate. — 

In  order  to  relieve  these  disabilities  of  the  married  woman,  the 
court  of  chancer v  in  England  early4  laid  the  foundations  of  a 
system,  since  much  elaborated,  by  means  of  which  property 
could  be  settled  to  the  separate  use  of  the  married  woman,  with 
reference  to  which  she  could  deal  to  a  large  extent  as  though 
she  were  unmarried.  Under  this  system  she  could  not  only  sell 5 
or  buy,6  but  could  also  enter  into  contractual  obligations  which 
would  bind,  not  herself  personally,  but  her  separate  estate.7 
When  not  restrained  by  the  terms  of  the  settlement,  the  rule  re- 
specting her  powers  was  said  in  one  case 8  to  be  this :  "  If  a  mar- 
ried woman,  having  separate  property,  enters  into  a  pecuniary 
engagement,  whether  by  ordering  goods  or  otherwise,  which,  if 
she  were  a.  feme  sole,  would  constitute  her  a  debtor,  and  in  en- 
tering into  such  engagement  she  purports  to  contract,  not  for 
her  husband,  but  for  herself,  and  on  the  credit  of  her  separate 
estate,  and  it  was  so  intended  by  her,  and  so  understood  by  the 
person  with  whom  she  is  contracting,  that  constitutes  an  obli- 

1  Benjamin  on  Sale  (6th  Am.  ed.),  6  Duncan  v.  Cashin  (1875;,  L.  R.  10 

§  32.  C.  P.  554 

-'See  Benjamin  on  Sale,  £§  33, 34.  7That  is,  such  separate  estate  as 

3  See  Benjamin  on  Sale,  g  35.  she  has  at  the  time  of  the  contract 

4  See  Fettiplace  v.  Gorges  (1789),  1  and  which  remains  at  the  time  of 
Yes.  Jr.  46,  1  Rev.  R  79:  Sturgis  v.  the  judgment.  Pike  v.  Fitzgibbon 
Corp  (1806),  13  Ves.  190,  9  Rev.  R.  169.  (1881),  17  Ch.  Div.  454 

5 Fettiplace  v.  Gorges,  supra;  Tay-        8  Matthewman's  Case  (1866),  L.  R. 
lor  v.  Meads  (1865),  4  De  Gex,  J.  &  S.     3  Eq.  Cas.  781. 
597;  Cooper  v.  Macdonald  (1877),  7 
Ch.  Div.  293. 

133 


§§  136,  137.]  LAW  OF  SALE.  [BOOK  I. 

gation  for  which  the  person  with  whom  she  contracts  has  the 
right  to  make  her  separate  estate  liable;  and  the  question 
whether  the  obligation  was  contracted  in  the  manner  men- 
tioned must  depend  upon  the  facts  and  circumstances  of  each 
particular  case." 

§  136.  American  statutes  removing  disabilities.—  The  doc- 
trines of  the  English  courts  of  equity  were  adopted  to  some 
extent  in  the  American  states,  but,  beginning  a  little  prior  to 
1850.  there  has  been  enacted  in  substantially  all  of  the  States 
a  series  of  remarkable  statutes,  in  some  cases  supplementing 
or  extending  the  equitable  jurisdiction,  but  usually  establishing 
a  new  legal  status,  by  which  the  rights  of  the  married  woman 
in  her  separate  estate  have  been  confirmed  and  her  power  to 
deal  with  it  as  a  feme  sole  quite  generally  established.  Space 
does  not  permit,  nor  does  the  occasion  require,  any  detailed  ex- 
amination of  these  statutes  or  the  decisions  under  them.  While 
there  is  a  general  similarity,  there  is  yet  so  much  of  dissimilar- 
ity that  the  statute  of  each  state  must  be  examined  in  the  light 
of  its  own  history  and  judicial  interpretation.  It  must  suffice 
to  say  that,  in  most  states,  the  real  and  personal  estate  which 
the  married  woman  possessed  at  her  marriage  and  that  which 
she  has  since  acquired,  remains  her  separate  estate,  free  from 
the  control  of  her  husband  or  liability  for  his  debts,  and  that> 
in  respect  of  this  separate  estate,  she  may  contract  as  though 
she  were  unmarried.1 

§  137,  Capacity  limited  even  under  most  statutes. — 

Her  power  to  make  contracts  is,  usually,  not  unlimited  even 
under  these  statutes,  but  is  confined  to  those  which  relate  to 
her  separate  estate.  Only  to  the  extent  and  in  the  cases  that 
the  statute  has  removed  her  disability,  can  she  contract;  other- 
wise her  common-law  incapacity  still  continues.2 

1  These  statutes  were  summarized        2Nash  v.  Mitchell  (1877),  71  N.  Y. 

(in  1886)  in  Stimsons  American  Stat-  199,  27  Am.  R.  38;  Russell  v.  Savings 

ute  Law,  art.  645  et  seq.     They  will  Bank  (1878),  39  Mich.  671,  33  Am.  R. 

also  be  found  in  the  various  works  444;  Detroit  Chamber  of  Commerce 

on  the  law  of  husband  and  wife,  and  v.  Goodman  (1896),  110  Mich.  498,  68 

the  rights  of  married  women.  N.  W.  R  295. 

134 


CH.  III.] 


CAPACITY    OF    PARTIES. 


[§  138. 


138. 


What  contracts  she  may   make. —  She  may 


under  these  statutes  generally  become  a  sole  trader  and  bivy  l 
and  sell 2  as  such.  She  may  enter  into  partnership  with  third 
persons,3  and  in  some  States  with  her  husband,4  and  charge 
her  separate  estate  as  such  partner.  And  she  may  even,  though 
living  with  her  husband,  bind  her  separate  estate  in  purchases 
which  would  ordinarily  be  deemed  binding  on  her  husband 
only,  if  it  appears  that  the  credit  was  extended  to  her  and 
not  to  him.8 


i  Nispel  v.  Laparle  (1874),  74  111.  306; 
Krouskop  v.  Shontz  (1881),  51  Wis. 
204, 37  Am.  R.  817;  Brickley  v.  Walker 
(1887),  68  Wis.  563;  Wallace  v.  Row- 
ley (1883),  91  Ind.  586;  Blumer  v.  Pol- 
lak  (1882),  18  Fla.  707  [see  also  Craw- 
ford v.  Feder  (1894),  34  Fla.  397, 
16  S.  R.  287];  Sargeant  v.  French 
(1882),  54  Vt.  384;  Reed  v.  Newcomb 
(1891),  64  Vt.  49;  Haight  v.  McVeagh 
(1873),  69  111.  624;  Hickey  v.  Thomp- 
son (1889),  52  Ark.  234;  Walter  v. 
Jones  (1892),  148  Pa.  St.  589, 24  Atl. 
R.  119. 

But  under  the  statute  a  married 
woman,  in  Michigan,  is  not  liable 
upon  a  note  given  by  herself  and 
husband  for  the  purchase  price  of 
property  purchased  jointly  with  her 
husband.  It  is  not  a  contract  con- 
cerning her  separate  estate,  and  she 
-would  also  become  a  surety  for  her 
husband  as  to  half  of  the  note,  which, 
for  the  same  reason,  is  beyond  her 
power.  Caldwell  v.  Jones  (1897),  115 
Mich.  129,  73  N.  W.  R.  129.  See  also 
Speier  v.  Opfer  (1888),  73  Mich.  35, 
40  N.  W.  R  909,  16  Am.  St.  R.  556. 

2  Porter  v.  Gamba  (1872),  43  Cal. 
105;  Trieber  v.  Stover  (1875).  30  Ark. 
727;  Netterville  v.  Barber  (1876),  52 
Miss.  168. 

3  Vail  v.  Winterstein  (1892),  94 
Mich.  230,  53  N.  W.  R.  932,  18  L.  R.  A. 
515.      Contra,    in    South    Carolina. 


Vannerson  v.    Cheatham  (1894),    41 
S.  C.  327,  19  S.  E.  R.  614. 

4  That  she  cannot  be  a  partner  with 
her  husband,  see  Artman  v.  Fergu- 
son (1888),  73  Mich.  146,  16  Am.  St. 
R.  572,  2  L.  R.  A.  343;  Gilkerson- 
Sloss  Com.  Co.  v.  Salinger  (1892),  56 
Ark.  294,  16  L.  R.  A.  526,  35  Am.  St. 
R.  105;  Seattle  Board  of  Trade  v. 
Hayden  (1892),  4  Wash.  263,  16  L.  R. 
A.  530,  31  Am.  St.  R.  919;  Fuller  v. 
McHenry  (1892),  83  Wis.  573, 18  L.  R. 
A.  512;  Bowker  v.  Bradford  (1885). 
140  Mass.  521;  Payne  v.  Thompson 
(1886),  44  Ohio  St.  192;  Scarlett  v. 
Snodgrass  (1883),  92  Ind.  262;  Carey 
v.  Burruss  (1882),  20  W.  Va.  571,  43 
Am.  R.  790.  That  she  may  be  a 
partner  with  her  husband,  see  Suau 
v.  Caffe  (1890),  122  N.  Y.  308,  25  N.  E. 
R.  488,  9  L.  R  A.  593;  Louisville 
R.  Co.  v.  Alexander  (Ky.,  1894),  27 
S.  W.  R.  981:  Belser  v.  Tuscumbia 
Banking  Co.  (1895),  105  Ala.  514,  17  S. 
R.  40;  Dressel  v.  Lonsdale  (1892),  46  111. 
App.  454;  Lane  v.  Bishop  (1893),  65  Vt. 
575,  27  AtL  R.  499.  In  Tennessee, 
see  Theus  v.  Dugger  (1893),  93  Tenn. 
41,  23  S.  W.  R  135.  In  Maine,  see 
Bird  Co.  v.  Hurley  (1895),  87  Me.  579, 
33  AtL  R.  164. 

5  Thus,  a  married  woman  is  liable 
for  the  price  of  a  suit  of  clothes  pur- 
chased by  her  for  her  minor  son, 
where  the  charge  was  made  to  her 


135 


§  139.] 


LAW    OF    SALE. 


[BOOK    I. 


|  139.  Statutory  liability  for  family  necessaries.— 

Formerly  in  Alabama,1  and  still  in  Iowa,2  Illinois,3  Missouri4 


by  her  direction  and  she  agreed  to 
pay  it:  Hirschfield  v.  Waldron  (1890), 
83  Mich.  116,  47  N.  W.  R.  239;  Meads 
v.  Martin  (1890).  84  Mich.  306,  47  N. 
W.  R.  r>83:  First  Commercial  Bank 
v.  Newton  (1898),  117  Mich.  433,  75  N. 
W.  R.  934;  or  for  medical  services  to 
a  minor  daughter,  under  like  circum- 
stances: Goodman  v.  Shipley  (1895), 
105  Mich.  439,  63  N.  W.  R.  412;  or  for 
wearing  apparel  for  herself:  Arnold 
v.  Engleman  (1885),  103  Ind.  512;  or 
for  board  for  herself  and  child:  Rush- 
ing v.  Clancy  (1893),  92  Ga.  769,  19 
S.  E.  R.  711. 

1  "For  all  contracts  for  articles  of 
comfort  and  support  of  the  house- 
hold, suitable  to  the  degree  and  con- 
dition in  life  of  the  family,  and  for 
which  the  husband  would  be  re- 
sponsible at  common  law,  the  sepa- 
rate estate  of  the  wife  is  liable;  to 
be  enforced  by  action  at  law,  against 
the  husband  alone,  or  against  hus- 
band and  wife  jointly."  Code,  1876, 
§  2711.     Now  repealed. 

*  In  Iowa,  Code  1897,  §  3165,  it  is 
provided  that  "  The  expenses  of  the 
family  and  the  education  of  the  chil- 
dren are  chargeable  upon  the  prop- 
erty of  both  husband  and  wife,  or 
either  of  them, and  in  relation  thereto 
they  may  be  sued  jointly  or  sepa- 
rately." 

"  Expenses  of  the  family  "  are  not 
limited  to  necessary  expenses;  it  is 
enough  that  the  expense  is  incurred 
on  account  of  the  family.  Smedley 
v.  Felt,  41  Iowa,  588;  Schrader  v. 
Hoover,  80  Iowa,  243.  Hence,  a  piano 
(Smedley  v.  Felt,  supra);  an  organ 
(Frost  v.  Parker,  65  Iowa,  178);  a 
cook  stove  (Finn  v.  Rose,  12  Iowa, 
565);  medical  services  for  the  hus- 


band or  other  member  of  the  family 
(Murdy  v.  Skyles.  101  Iowa,  549, 70  N. 
W.  R.  714);  a  watch  and  other  jew- 
elry, even  though  the  watch  was 
presented  by  the  husband  to  his  wife 
(Marquardt  v.  Flaughter,  60  Iowa. 
148);  even  a  diamond  stud  worn  by 
the  husband  (Neasham  v.  McNair,  103 
Iowa,  695,  64  Am.  St.  R.  202),  are 
all  family  expenses  for  which  the 
wife  may  be  held  liable  under  the 
statute;  but  a  reaping  machine 
(McCormick  v.  Muth,  49  Iowa,  536), 
or  a  plow  (Russell  v.  Long.  52  Iowa, 
250),  is  not  such  an  expense.  Many 
other  illustrations  are  found  in  the 
Iowa  reports. 

3  In  Illinois,  the  Iowa  statute  has 
been  adopted  verbatim.  Starr  & 
Curtis,  Ann.  Stat.  1896,  p.  2133,  §  15. 
In  adopting  this  statute  from  Iowa, 
the  interpretation  put  upon  it  by  the 
Iowa  court  is  adopted  also.  Myers 
v.  Field,  146  111.  50;  Glaubensklee  v. 
Low,  29  111.  App.  408. 

Under  this  interpretation  it  is  not 
essential  that  the  expenses  shall 
have  been  "necessary;"  the  statute 
applies  to  family  expenses  without 
limitation  as  to  amount,  and  with- 
out regard  to  the  wealth,  habits  or 
social  position  of  the  parties.  Hud- 
son v.  King.  23  111.  App.  118.  The 
wife's  consent  is  not  necessary,  and 
the  fact  that  the  goods  were  for  the 
husband's  personal  use  is  immaterial. 
Hudson  v.  King,  supra. 

4  In  Missouri,  Rev.  Stats.  1899, 
§  4310,  the  real  and  personal  prop- 
erty of  the  wife  which  she  had  at 
the  time  of  her  marriage,  or  which 
has  come  to  her  since  by  gift,  bequest 
or  inheritance,  or  by  purchase  with 
her  separate  money,  or  due  as  wages 


136 


CH.  III.] 


CAPACITY    OF   PARTIES. 


[§§  140,  Inl- 


and Oregon,1  by  force  of  certain  unusual  and  peculiar  statutes, 
her  separate  estate  is  made  liable  for  family  expenses  even 
though  she  took  no  part  in  contracting  them. 

c.  Of  the  Capacity  of  Corporations. 

§140.  In  general.— It  is,  of  course,  entirely  beyond  the 
range  of  such  a  work  as  this  to  go,  with  any  fullness,  into  the 
question  of  the  capacity  of  corporations  to  buy  and  sell.  That 
subject  belongs  to  the  special  treatises  upon  the  law  of  corpo- 
rations. But  in  attempting  to  present  to  the  reader's  mind  a 
general  view  of  the  capacity  of  parties  to  enter  into  the  con- 
tract of  sale,  a  statement  of  the  most  fundamental  principles 
which  control  the  private  corporation  in  this  regard  seems 
pertinent.     Thus  — 

§  141.  Corporations  as  sellers. —  Unless  restrained  by  stat- 
ute or  by  the  inherent  nature  or  purpose  of  its  existence,  a  pri- 
vate corporation  has  the  same  power  to  dispose  of  its  property 
by  sale  that  a  private  individual  would  have  in  like  circum- 
stances.2    As  is  said  in  one  case : 3  "  The  very  idea  of  private 


for  her  personal  service,  or  by  reason 
of  a  violation  of  her  personal  rights, 
remains  her  separate  property,  and 
is  not  in  general  liable  for  the  debts 
of  the  husband,  but  such  personal 
property  "  shall  be  subject  to  execu- 
tion .  .  .  for  any  debtor  liability 
of  her  husband  created  for  necessa- 
ries for  the  wife  or  family." 

The  wife  must  be  a  party  to  the 
proceeding.  Bedsworth  v.  Bowman, 
104  Mo.  44 

i  In  Oregon,  Hill's  Code,  §  2874,  it 
is  provided  that  "The  expenses  of 
the  family  and  the  education  of  the 
children  are  chargeable  upon  the 
property  of  both  husband  and  wife, 
or  either  of  them,  and  in  Nation 
thereto  they  may  be  sued  jointly  or 
separately."    The  cost  of  a  buggy 


bought  by  the  husband  for  family 
use  and  used  by  the  family  is  a 
family  expense  within  the  meaning 
of  this  statute.  Dodd  v.  St.  John 
(1892),  22  Oreg.  250,  29  Pac.  R.  618, 
15  L.  R.  A.  717. 

2  White  Water  Valley  Canal  Co.  v. 
Vallette  (1858),  21  How.  (TJ.  S.)  424 
Pierce  v.  Emery  (1856),  32  N.  H.  486 
Hood  v.  Railroad  Co.  (1852),  22  Conn.  1 
Richards  v.  Railroad  Co.  (1S62),  44  N. 
H.   136;    Commonwealth    v.    Smith 
(1865),  10  Allen  (Mass.),  448;  Buffett 
v.  Railroad  Co.  (1869),  40  N.  Y.  176; 
Reichwald  v.  Commercial  Hotel  Co. 
(1883),  106  111.  439;  Burton's  Appeal 
(1868),  57  Pa.  St.  213. 

3  Miners'  Ditch  Co.  v.  Zellerbach 
(1869),  37  Cal.  543,  99  Am.  Dec.  300. 


137 


§  142.]  LAW  OF  SALE.  [BOOK  I. 

property,  in  which  the  public  has  no  rights,  involves  the  idea 
of  a  right  to  sell  and  convey  when  the  exigencies  of  the  corpo- 
ration require  it."     The  jus  disjxmendi,  therefore,  necessarily 
attaches  as  an  incident  to  the  ownership.     The  general  rule 
with  its  limitations  is  well  stated  by  Bigelow,  J.,  as  follows: 
"  At  common  law  the  right  of  corporations,  acting  by  a  ma- 
jority of  their  stockholders,  to  sell  their  property  is  absolute, 
and  is  not  limited  as  to  objects,  circumstances  or  quantity.    To 
this  general  rule  there  are  many  exceptions,  arising  from  the 
nature  of  particular  corporations,  the  purposes  for  which  they 
were  created,  and  the  duties  and  liabilities  imposed  on  them 
by  their  charters.     Corporations  established  for  objects  quasi- 
public,  such  as  railway,  canal  and  turnpike  corporations,  to 
which  the  right  of  eminent  domain  and  other  large  privileges 
are  granted  in  order  to  enable  them  to  accommodate  the  pub- 
lic, may  fall  within  the  exception ;  as  also  charitable  and  re- 
liirious  bodies,  in  the  administration  of  whose  affairs  the  com- 
munity,  or  some  portion  of  it,  has  an  interest,  to  see  that  their 
corporate  duties  are  properly  discharged.     Such  corporations 
may,  perhaps,  be  restrained  from  alienating  their  property, 
and  compelled  to  appropriate  it  to  specific  uses,  by  mandamus 
or  other  proper  process.     But  it  is  not  so  with  corporations  of  a 
private  character,  established  solely  for  trading  and  manufactur- 
ing purposes.     Neither  the  public  nor  the  legislature  have  any 
direct  interest  in  their  business  or  its  management." l 

§  142.  Corporations  as  purchasers. —  So,  also,  it  is  well  set- 
tled that  a  private  corporation,  in  the  absence  of  contrary  pro- 
visions in  its  charter,  has  implied  power  to  purchase  and  hold 
such  property,  whether  real  or  personal,  as  may  reasonably  be 
required  to  enable  it  to  carry  on  the  business  and  accomplish 
the  purposes  for  which  it  was  created.2 

i  Treadwell  v.  Salisbury  Mfg.  Co.  2  Page  v.  Heineberg  (1868),  40  Vt. 
(1856),  7  Gray  (Mass.),  393,  66  Am.  Dec.  81,  94  Am.  Dec.  378;  Old  Colony  R. 
490.  See  also  Richards  v.  Railroad  R.  Co.  v.  Evans  (1856),  6  Gray  (Mass.). 
Co.  (1862),  44  N.  H.  136;  Pierce  v.  38,  66  Am.  Dec.  394;  Spear  v.  Craw- 
Emery  (1856),  32  id.  486.  ford  (1835),  14  Wend.  (N.  Y.)  23,  28 

138 


CH.  III.]  CAPACITY    OF    PARTIES.  [§   143. 

This  power,  however,  is  one  which  is  incidental  to  its  main 
powers,  and  the  corporation  has,  therefore,  no  authority  to  pur- 
chase and  hold  such  property  as  does  not  fall  within  the  limits 
above  specified.1 

A  corporation,  therefore,  organized  for  the  sole  purpose  of 
manufacturing  cannot,  it  is  held,2  enforce  an  executory  con- 
tract to  sell  and  deliver  to  it  goods  which  are  not  to  be  used 
in  the  process  of  manufacturing,  but  are  to  be  sold  again  by 
the  corporation  for  profit. 

The  question  of  the  power  of  a  private  corporation  to  buy 
and  hold  stock,  either  its  own  or  that  issued  by  some  other 
corporation,  leads  so  far  into  questions  of  general  corporation 
law  that  it  is  left  for  the  special  treatises  upon  that  subject.3 

Express  limitations  may  of  course  be  placed,  by  charter  or 
other  fundamental  instruments,  upon  the  power  of  the  corpo- 
ration to  acquire  and  hold  property,  either  real  or  personal;4 
but  the  question  of  the  effect  of  such  limitations  is  also  be}*ond 
the  present  purpose  and  must  be  left  to  the  special  treatises 
upon  corporation  law. 

d.  Of  the  Capacity  of  Partnerships. 

§  143.  In  general. —  For  reasons  similar  to  those  suggested 
in  the  preceding  subdivision  in  relation  to  corporations,  a  word 
must  be  said  respecting  the  power  of  partnerships  to  buy  and 
sell. 

Partnerships  may  be  organized  for  any  lawful  purpose  to 
which  the  buying  and  selling  of  personal  property  may  be 
more  or  less  germane.  In  many  cases  that  may  be  the  chief 
or  characteristic  purpose  of  the  partnership,  distinguishing  it 

Am.  Dec.  513;  Moss  v.  Averell  (1853),    cent  Oil  Co.  (1895),  171  Pa.  St.  109,  32 

10  N.  Y.  449;  Thompson  v.  Waters    Atl.  R.  1120. 

(1872),  25  Mich.  222, 12  Am.  R.  243.  3  See,  for  example,  Cook  on  Corpo- 

i  Pacific  R.  R.  Co.  v.  Seely  (1870),    rations,  vol.  I,  §§  309  et  seq. 
45  Mo.  212,  100  Am.  Dec.  369;  Rens-        4  Compare,   for    example,    Cornell 
selaer,  etc.  R.  R.  Co.  v.  Davis  (1870),    University  v.  Fiske  (1889).  136  U.  S. 
43  N.  Y.  137.  152.  and  Farrington  v.  Putnam  (1897), 

2  Bosshardt  &  Wilson  Co.  v.  Cres-    90  Me.  405,  37  Atl.  R.  652,  38  L.  R.  A. 

339. 
139 


§   14-LJ  LAW    OF    SALE.  [BOOK    I. 

in  many  important  points  from  those  whose  chief  purpose  is  not 
thus  commercial.  Thus  it  is  said  in  a  recent  case :  "  The  test  of 
the  character  of  the  partnership  is  buying  and  selling.  If  it  buys 
and  sells,  it  is  commercial  or  trading.  If  it  does  not  buy  or 
sell,  it  is  one  of  employment  or  occupation."  By  this  is  meant, 
of  course,  buying  and  selling  as  a  business  and  not  as  a  mere  in- 
cident to  some  other  business  or  occupation.  The  distinction 
is  an  important  one;  for,  as  can  readily  be  seen  and  as  will  be 
more  fully  observed  hereafter,  much  greater  powers  may  prop- 
erly be  regarded  as  incident  to  a  commercial  or  trading  busi- 
ness than  to  one  for  the  exercise  of  a  profession  or  occupation 
merely.  Of  this  distinction  and  its  legal  consequences  third 
persons  are  bound  to  take  notice.1 

§  144.  The  partnership  as  seller. —  The  powers  of  the  part- 
nership may  be  exercised  by  all  of  the  partners  collectively,  or 
by  any  one  partner  alone,  it  being  the  general  rule  that  each 
partner  is  agent  for  the  firm  in  all  matters  falling  within  the 
scope  of  the  partnership  business  as  it  is  actually  conducted. 
All  of  the  partners  collectively,  however,  might  do  acts  which 
a  single  partner  would  have  no  implied  power  to  do,  for  all 
might  thus  extend  or  exceed  the  scope  of  the  business,  and 
there  would  be  no  one  left  to  complain.  But,  speaking  of  the 
implied  power  of  a  partner  as  falling  within  the  scope  of  the 
partnership  business,  it  may  be  said  that  each  partner  has  im- 
plied authority  to  sell,  assign  or  dispose  of,  in  the  regular  course 
of  business,  so  much  of  the  partnership  property  as  is  designed 
for  sale,  even  though  it  be  the  whole  property  of  the  firm,  and 
may  pass  the  entire  title  to  it.  He  may  also  sell  or  transfer, 
in  the  course  of  the  business,  choses  in  action  and  other  intan- 
gible property  of  the  firm,  such  as  its  accounts  and  bills  re- 
ceivable, patent-rights,  and  the  like.  And  upon  the  sale  he 
may  give  such  warranties  of  title  or  quality,  or  may  make  such 

1  See  Mechem's  Elem.  of  Partner-    Pease  v.  Cole  (1885),  53  Conn.  53,  55 
ship,  §  162;  Lee  v.  First  Nat.  Bank    Am.  R.  53;  Smith  v.  Sloan  (1875),  37 
(1890),  45  Kan.  8,  25  Pac.  R  196,  11  L.     Wis.  285,  19  Am.  R.  757;  Woodruff  v. 
R,  A.  238;  Winshipv.  Bank  of  United    Scaife  (1887),  83  Ala.  152. 
States  (1831),  5  Peters  (U.  S.),  529; 

140 


CH.   III.]  CAPACITY    OF    PARTIES.  [§§  145,  146. 

incidental  contracts  in  relation  thereto,  as  are  usually  made  in 
like  cases.1 

The  implied  power  of  one  partner  to  sell  the  entire  property 
of  the  firm  is,  by  the  weight  of  authority,  limited  to  that  kept 
for  sale  and  does  not  include  the  power  to  sell  that  kept  for 
the  purposes  of  carrying  on  the  business.2 

§  145.  The  partnership  as  buyer. —  The  same  general  prin- 
ciples apply  where  the  partnership  is  buying.  All  of  the  part- 
ners mio-ht  so  act  as  to  foreclose  themselves  from  asserting  that 
the  purchase  was  not  within  the  scope  of  the  partnership  busi- 
ness; but  the  power  of  one  partner,  ordinarily,  must  be  meas- 
ured by  that  scope. 

The  distinction  between  trading  and  non-trading  firms  is 
here  material,  but  not  conclusive  as  to  the  implied  power  to 
buy.  In  the  case  of  the  trading  firm,  whose  business  it  is,  in 
whole  or  in  part,  to  buy  goods  for  use  or  sale,  the  power  of  each 
partner  to  buy  such  goods  must  clearly  be  implied.  It  must 
also  be  implied  in  the  case  of  a  non-trading  firm  if  the  purchase 
is  within  the  scope  of  the  business  as  actually  conducted.3 

The  purchase  may  be  on  credit,  and  may  be  of  either  real  or 
personal  property  within  the  limits  stated. 

If  the  power  exists,  the  firm  is  none  the  less  bound  because 
the  partner  bu}ring  subsequently  misapplies  the  goods. 

II. 

Or  Sales  by  Persons  Having  Only  a  Defeasible  Title. 

§  146.  Person  in  possession  under  a  defeasible  title  may 
transfer  good  title  to  bona  fide  purchaser. —  It  frequently 
happens  that  a  person  may  be  in  possession  of  goods,  as  owner, 

iSee  Mechem's  Elera.  of  Partner-  Ind.  417,  24  N.  E.  R  351,  7  L.  R  A. 

ship,  §  186;  Ellis  v.  Allen  (1886),  80  784;  Wilcox  v.  Jackson  (1884),  7  Colo. 

Ala.  515,  2  S.  R.  676;  Crites  v.  Wil-  521,  4  Pac.  R.  966;  Cayton  v.  Hardy 

kinson  (1884),  65  Cal.  559,  4  Pac.  R  (1858),  27  Mo.  536. 

567;    First  Nat.   Bank   v.   Freeman  3See  Mechem's  Elem.  of  Partner- 

(1882),  47   Mich.   408;    Schneider  v.  ship,  §  176;  Bond  v.  Gibson  (1808),  1 

Sansom  (1884),  62  Tex.  201.  Camp.  185,  Ames'  Cas.  on  Partn.  537, 

2  See  Lowman  v.  Sheets  (1890),  124  and  note;  Lynch  t.  Thompson  (1883), 

141 


§§  147,  148.]  LAW    OF    SALE.  [BOOK   I. 

having  a  title  thereto  not  absolute  but  subject  to  defeasance 
upon  the  happening  of  some  condition  subsequent,  or  upon  the 
act  of  some  other  person  having  a  paramount  right.  The  per- 
son so  situated  has  a  title  to  the  goods,  which  may  be  defeated 
or  not,  but  which  until  it  is  defeated  confers  upon  him  many 
of  the  rights  of  an  owner.  Among  these  rights  is  that  of  trans- 
ferring at  least  such  interest  as  he  has,  and,  in  many  cases, 
where  his  vendee  has  acted  in  good  faith,  and  paid  value  for  the 
goods  in  ignorance  of  the  defeasible  character  of  the  title,  such 
vendee  will  acquire  the  title  freed  from  its  defeasible  nature. 
The  more  important  of  these  cases  will  be  here  considered. 

§  147.  One  holding  subject  to  a  secret  lien. —  A  famil- 
iar illustration  of  this  rule  is  found  in  the  case  of  one  who  has 
a  title  to  goods  subject  to  some  secret  lien,  which  while  good 
between  the  parties  cannot  prevail  against  a  purchaser  who 
buys  the  goods  in  good  faith  without  notice  of  the  lien.  The 
common'  instance  of  the  chattel  mortgage  not  filed  or  recorded 
as  the  law  directs  and  not  otherwise  brought  to  the  notice  of 
the  purchaser  affords  a  typical  illustration.  As  said  in  such  a 
case: l  "  It  is  too  well  settled  to  admit  of  argument  or  doubt, 
that  if  the  general  owner  of  personal  property,  having  posses- 
sion thereof,  sell  and  deliver  it  to  a  person  who  has  no  notice, 
actual  or  constructive,  that  the  property  is  incumbered,  but  who 
purchases  it  in  good  faith  for  value,  such  purchaser  will  hold 
the  property  discharged  of  any  prior  incumbrance." 

§  148.  Fraudulent  vendee. —  Another,  and  one  of  the 

most  common  illustrations  of  this  rule,  is  that  of  the  vendee 
who  has  purchased  goods  by  means  of  such  fraudulent  prac- 
tices that  his  vendor  may  rescind  the  sale.  What  these  cases 
are  is  more  fully  considered  in  later  sections,2  but,  as  will  there 

61    Miss.   354;    Stillman  v.    Harvey  14   Nev.   265;'  Kenney  v.   Altvater 

(1879),  47  Conn.  27;  Johnston  v.  Trask  (1874),  77  Pa.  St.  34. 

(1889),  116  N.  Y.  136,  22  N.  E.  R.  377,  J  Andrews  v.  Jenkins  (1876),  39  Wis. 

15  Am.  St.  R.  394,  5  L.  R.  A.  630;  476. 

Porter  v.  Curry  (1869),  50  111.  319,  99  2  See  post,  §886  et  seq. 

Am.  Dec.  520;  Davis  v.  Cook  (1879), 

142 


CB".  III.]  CAPACITY    OF    PARTIES.  [§  148. 

be  seen,  it  is  settled  that  the  sale  is  not  void  but  merely  void- 
able. The  defrauded  vendor  may  disaffirm  the  sale,  or  he  may 
ratify  and  confirm  it;  but,  until  he  has  disaffirmed  it,  his  vendee 
has  such  a  title  that  he  may  transfer  a  complete  and  indefeas- 
ible title  to  one  who  purchases  the  goods  from  him  for  value 
in  good  faith  and  without  notice  of  the  fraud.1 

This  rule  and  the  reasons  for  it  were  well  stated  by  Chief 
Justice  Shaw,  as  follows:  "It  is  a  well-established  rule  that 
goods  obtained  by  fraud  in  the  sale,  as  by  false  representations, 
may  be  reclaimed  by  the  vendor.  This  does  not  proceed  on 
the  ground  that  the  property  in  the  goods  does  not  pass  by  the 
sale,  but  that  the  dishonest  purchaser  shall  not  hold  it  against 
the  deceived  vendor.  But  it  is  at  the  option  of  the  vendor  to 
rescind  the  contract  and  reclaim  the  goods  or  not.  If  he  elects 
to  rescind  and  avoid  the  sale,  he  must  do  it  within  a  reason- 
able time  after  coming  to  the  knowledge  of  the  fraud.  If  he 
does  anything  to  affirm  the  sale,  after  a  full  knowledge  of  the 
facts  —  especially  if  he  suffer  a  considerable  time  to  elapse,  or  if 
others  are  induced  by  his  affirmance  to  act, —  he  will  not  be  en- 
titled to  disaffirm  the  sale  and  reclaim  the  goods.  By  the  con- 
tract, the  vendee  takes  the  property  in  the  goods ;  but  he  takes 
by  title  defeasible,  because,  as  against  the  vendor,  he  cannot 
honestly,  and  of  course  not  legally,  hold  them.  But  this  right 
of  reclaiming  can  be  enforced  only  whilst  the  goods  are  in  the 
hands,  first,  of  the  fraudulent  purchaser;  or  secondly,  of  some 
agent,  trustee  or  other  person  holding  for  the  use  and  benefit 
of  the  purchaser;  or  thirdly,  of  some  one  who  has  taken  them 
of  the  purchaser  with  knowledge  of  the  fraud  by  which  they 
they  were  obtained,  or  with  notice  sufficient  to  put  him  on  rea- 

1  Hoffman  v.  Noble  (1843).  6  Mete.  477;  Farley  v.  Lincoln,  51  N.  H.  577; 

(Mass.)  68;  Kingsbury  v.  Smith  (1842),  Sleeper  v.  Davis,  64  N.  H.  59,  6  AtL 

13  N.  H.  109;  White  v.  Garden  (1851),  R.  201:  Rowley  v.  Bigelow,  12  Pick. 

10  C.  B.  919,  20  L.  J.  C.  P.  166,  70  Eng.  (Mass.)  307];  Holland  v.  Swain  (1879), 

Com.  L.  918;  Kingsford  v.  Merry,  25  94  111.  154;  Doane  v.  Lockwood  (1886), 

L.  J.  Ex.  166;  Pease  v.  Gloahec,  L.  R.  115  111.  490;  Curme  v.  Rauh  (1884),  100 

1  Pr.  Coun.  219;  Porell  v.  Cavanaugh  Ind.  247;  Robinson  v.  Levi  (1886),  81 

(1898),  69  N.  H  364,  41  AtL  R.  860  Ala.  134. 
[citing  Bradley  v.  Obear,  10  N.  H. 

143 


§  U9.] 


LAW    OF    SALE. 


[book 


sonable  inquiry,  including  under  this  head  a  mere  volunteer 
who  has  obtained  the  goods  without  paying  any  valuable  con- 
sideration. It  follows  that  a  purchaser  for  a  valuable  consid- 
eration without  notice  takes  a  title  from  the  vendee  which  is 
not  defeasible,  and  will  therefore  hold  the  goods." l 

Who  may  be  deemed  to  be  such  a  lonaficle  purchaser  and 
what  considerations  will  be  deemed  sufficient  are  more  fully 
considered  in  the  later  sections  already  referred  to.2 

§  149.  Person  who  obtained  goods  by  trick  without  a 

sale.—  But  this  rule,  protecting  the  lonaficle  purchaser,  does  not 
apply  where  the  person  from  whom  he  bought  had  himself  ob- 
tained the  goods  by  means  of  some  trick  or  device  and  not 
through  the  form  of  a  sale  to  him.  Thus  where  A  falsely 
represents  himself  to  be  B,3  or  the  agent4  or  partner5  of  B,  or 
even  the  agent  of  a  person  not  named  but  represented  to  be  in 


i  In  Hoffman  v.  Noble(1843),  6  Mete. 
(Mass.)  68. 

3  Thus  where  one  A.  Blenkarn  by- 
means  of  various  devices  caused  him- 
self to  appear  to  be  W.  Blenkiron  & 
Co.,  and  thereby  obtained  goods 
which  the  owners  supposed  they 
were  selling  to  the  latter  firm,  it  was 
held  that  Blenkarn  obtained  no  title 
whatever,  as  there  was  never  any 
contract  with  him,  and  even  his 
bona  fide  vendee  could  obtain  none. 
Cundy  v.  Lindsay  (1878),  3  App.  Cas. 
459.  To  like  effect:  Higgons  v.  Bur- 
ton (1857),  26  L.  J.  Exch.  342. 

4  Thus  where  S.  an  impostor,  went 
to  D.,  and,  claiming  to  be  the  agent 
of  B.,  contracted  with  D.  for  the  sale 
of  goods  to  B.,  and  then  went  to  B., 
and,  claiming  to  be  the  agent  of  D., 
contracted  to  sell  the  same  goods  to 
B.;  and,  having  obtained  possession 
of  tlifi  goods,  delivered  them  to  B. 
and  received  the  price,  it  was  held 
that  D.'s  title  was  not  divested,  and 
that  B.  was  liable  to  D.     Barker  v. 


Dinsmore  (1872),  72  Pa.  St.  427, 13  Am. 
R.  697.  Compare  with  McGoldrick 
v.  Willits  (1873),  52  N.  Y.  612,  the 
facts  of  which  are  stated  in  note  to 
§165, post.  Tosame effect:  Edmunds 
v.  Merchants'  Transp.  Co.  (1883),  135 
Mass.  283;  Dean  v.  Yates  (1872),  22 
Ohio  St.  388;  Hamet  v.  Letcher  (1881), 
37  Ohio  St.  356,  41  Am.  R  519;  Alex- 
ander v.  Swackhamer  (1885),  105  Ind. 
81,  55  Am.  R  180;  Hentz  v.  Miller 
(1883),  94  N.  Y.  64;  Peters  Box  Co.  v. 
Lesh  (1888),  119  Ind.  98.  See  also 
Decan  v.  Shipper  (1860),  35  Pa  St.  239, 
78  Am.  Dec.  334;  Soltau  v.  Gerdau 
(1890),  119  N.  Y.  380, 16  Am.  St.  R  843, 
23  N.  E.  R.  864.  So  also,  where  one 
represented  to  be  the  agent  of  a  cor- 
poration which,  in  fact,  did  not  exist. 
Wyckoff  v.  Vicary  (1894),  75  Hun 
(N.  Y),  409. 

5  Such  was  the  case  in  Hardman  v. 
Booth  (1863),  32  L.  J.  Exch.  105,  and 
Moody  v.  Blake  (1874),  117  Mass.  23, 
19  Am.  R.  394. 


144 


CH.  III.]  CAPACITY    OF   PARTIES.  [§§  150-152. 

good  credit,1  and  by  means  thereof  obtains  goods  which  the 
owner  did  not  intend  to  sell  to  A  but  to  B,  or  the  other  al- 
leged principal  of  A,  A  obtains  no  title  at  all,  and  a  bona  fide 
purchaser  from  A  can  acquire  none. 

§  150,  Fraudulent  grantee  of  debtor. —  Another  case 

falling  within  the  same  general  principle  is  that  of  the  bona 
fide  purchaser  from  the  fraudulent  grantee  of  a  debtor.  It  is, 
indeed,  true,  as  will  be  seen  hereafter,2  that  if  a  debtor  sells, 
assigns  or  otherwise  disposes  of  his  goods  for  the  purpose  of 
defrauding  his  creditors,  his  assignee,  who  is  a  party  to  the 
fraud,  obtains  only  a  defeasible  title,  which  may  be  impeached 
by  the  debtor's  creditors ;  but  if  before  the  creditors  have  acted 
the  debtor's  grantee  again  sells  the  goods  to  one  who  is  igno- 
rant of  the  fraud,  and  in  good  faith  pays  value  for  them,  the 
latter  will  obtain  a  title  which  cannot  be  assailed  by  the  cred- 
itors of  the  debtor.3 

§  151.  Fraudulent  debtor, —  And  again,  allied  to  the 

last  case,  it  will  be  seen  hereafter,4  that  though  sales  made  by 
a  debtor,  for  the  purpose  of  defrauding  his  creditors,  may  in 
general  be  set  aside,  this  is  not  true  where  his  vendee  was  igno- 
rant of  his  fraudulent  intent  and  bought  the  goods  in  good  faith 
and  for  value.5 

§  152. Conditional  vendee. —  Unlike  the  cases  here  being 

considered,  and  to  be  distinguished  from  them,  is  the  case  of 
the  purchaser  who  has  contracted  upon  the  condition  that, 
though  the  possession  may  be  delivered  to  him,  no  title  shall 

iSuch  was  the  case  in  Rodliff  v.  63  N.  H.  126;  Stokes  v.  Jones  (1851), 

Dallinger  (1886),  141  Mass.  1,  4  N.  E.  18  Ala.  734;  Waters  v.  Riggin  (1862),  19 

R.  805,  55  Am.  R.  439.  Md.  536;  Barnes  v.  Hardeman  (1855), 

2  See  post,  §§  946  et  seq.  15  Tex.  366. 

3  Anderson    v.   Roberts    (1820),   18        4See  post,  §  946. 

Johns.  (N.  Y.)  515,  9  Am.  Dec.  235;        '°  See  post,  §952;    Zoeller  v.  Riley 

Neal  v.  Williams  (1841),  18  Me.  391;  (1885),  100  N.  Y.  103,  2  N.  E.  R.  388; 

Green  v.  Tanner  (1844),  8  Mete.  (Mass.)  Neal  v.  Williams  (1841),  18  Me.  391; 

411;  Sleeper  v.  Chapman  (1876),  121  Sleeper  v.  Chapman  (1876),  121  Mass. 

Mass.  404:  Gordon  v.  Ritenour  (1885),  404;   Comey  v.  Pickering  (1884),  63 

87  Mo.  51;  Comey  v.  Pickering  (1884),  N.  H.  126. 
10                                              145 


§§  153,  154.]  LAW    OF    SALE.  [BOOK   I. 

pass  to  him  until  the  price  is  paid.  Here,  until  the  payment 
of  the  price,  the  vendee  has  by  the  express  terms  of  the  agree- 
ment no  present  title  at  all,  not  even  a  defeasible  one;  and,  as 
will  be  seen,  it  is  settled,  by  the  great  weight  of  authority,  that 
until  he  acquires  title  by  payment  he  can  transfer  none  even 
to  a  bona  fide  purchaser  for  value.1 

§  153.  Purchaser  for  cash  who  has  obtained  the  goods 

without  paying  the  price. —  In  like  situation  is  the  purchaser 
for  cash  who  has  obtained  possession  of  the  goods  without  pay- 
ing the  price.  As  will  be  seen  hereafter,2  payment  and  trans- 
fer are,  in  such  cases,  designed  to  be  concurrent  acts;  and  if 
the  vendee,  by  trick  or  otherwise,  without  paying  gets  posses- 
sion of  the  goods,  the  seller,  who  has  done  nothing  to  waive 
his  right,  may  recover  them  from  the  vendee.  While  the 
vendee  is  so  holding  them  his  interest  is  only  a  conditional 
one,  and  he  can  convey  no  greater,  even  to  a  bona  fide  pur- 
chaser.3 

The  same  rule  applies  also  where,  instead  of  payment  in  cash, 
a  note  or  other  security  for  the  price  is  to  be  given.  If  the 
giving  of  the  note  or  other  security  be  not  waived,  but  the 
vendee  obtains  possession  of  the  goods,  he  acquires  no  present 
title  and  can  convey  none,  even  to  a  bona  fide  purchaser.4 

III. 

Of  Sales  by  Persons   Having   Only   an   Ostensible  Title. 

§  154.  In  general,  one  can  convey  no  better  title  to  a  chat- 
tel than  he  has. —  It  is  a  fundamental  doctrine  of  the  common 
law,  from  which  all  discussion  of  the  question  must  proceed, 
that,  in  general,  no  one  can  transfer  a  better  title  to  a  chattel 

i  See  post,  §  599.  neapolis  Elevator  Co.  (1890),  44  Minn. 

iSeejwst.  §542.  153,  46  N.  W.  R.  306;  Owen  v.  Long 

s  National  Bank  of  Commerce  v.  (1897),  97  Wis.  78,  72  N.  W.  R.  364. 

C,  B.  &  Q.  R.  Co.  (1890),  44  Minn.        4  Wheeler  &  Wilson  Co.  v.  Irish- 

224,  46  N.  W.  R.  342,  560;  Freeman  v.  American  Bank  (1898),  105  Ga.  57,  31 

Kraemer  (1895).  63  Minn.  242,  65  N.  S.  E.  R.  48. 

W.  R.  455;  Globe  Milling  Co.  v.  Min- 

146 


CH.   III.]  CAPACITY    OF    PARTIES.  [§  155. 

than  he  himself  possesses.  Nemo  dat  quod  non  hahet  is  usually 
the  inflexible  maxim.  That  some  or  all  of  the  parties  acted  in 
good  faith  or  parted  with  value  is  usually  entirely  immaterial; 
however  innocent  the  motives  or  however  valuable  the  consid- 
eration, if  the  party  who  assumed  to  convey  had  no  right  or 
title  to  transfer,  no  title  can  pass  to  the  other.1 

In  the  case  of  negotiable  instruments,  for  obvious  reasons, 
different  principles  apply,  and  it  is  possible  in  many  cases  for 
one  to  invest  his  transferee  with  a  better  title  than  he  himself 
possessed ;  but  these  principles  have  no  application  to  the  trans- 
fer of  the  ordinary  chattel.  In  the  latter  case  the  strict  rules 
of  the  common  law  have,  in  general,  unabated  sway. 

§  155.  True  owner  not  to  be  divested  without  Lis 

consent. —  This  general  principle  of  the  common  law  has  no- 
where been  better  stated  than  by  Senator  Verplanck  in  the 
leading- case  of  Saltus  v.  Everett:-  "The  universal  and  funda- 
mental  principle  of  our  law  of  personal  property  is,  that  no 
man  can  be  divested  of  his  property  without  his  own  consent; 
and,  consequently,  that  even  the  honest  purchaser  under  a  de- 
fective title  cannot  hold  against  the  true  proprietor.  That '  no 
one  can  transfer  to  another  a  better  title  than  he  himself  has ' 
is  a  maxim,  says  Chancellor  Kent,  '  alike  of  the  common  and 
the  civil  law,  and  a  sale  ex  vi  termini  imports  nothing  more 
than  that  the  bona  fide  purchaser  succeed  to  the  rights  of  the 
vendor.'  The  only  exception  to  this  rule  in  the  ancient  Eng- 
lish jurisprudence  was  that  of  sales  in  markets  overt,  a  custom 

i  Saltus  v.  Everett  (1838),  20  Wend.  843;  Moody  v.  Blake  (1874),  117  Mass. 

<N.  Y.)  267,  32  Am.  Dec.  541;  Levi  v.  23,  19  Am.  R.  394;    Smith  v.  Clews 

Booth  (1882).  58  Md.  305,  42  Am.  R.  (1889),  114  N.  Y.  190,  21  N.  E.  R.  160, 

332;  Barnard  v.  Campbell  (1874),  55  11  Am.  St.  R.  627,  4  L.  R.  A.  392; 

N.  Y.  456.  14  Am.  R.  289;  McNeil  v.  Klein  v.  Seibold  (1878),  89  111.  540; 

Tenth  Nat.  Bank  (1871),  46  N.  Y.  325,  McMahon  v.  Sloan  (1849),  12  Pa.   St. 

7  Am.  R.  341;  Covill  v.  Hill  (1847),  4  229,  51  Am.  Dec.  601;  Quinn  v.  Davis 

Denio  (N.  Y),  323;  Cundy  v.  Lind-  (1875),  78  Pa.  St.  15;  Wilson  v.  Crocket 

say  (1878),  3  App.  Cas.  459;  Jetton  v.  (1869),  43  Mo.  216,  97  Am.  Dec.  389; 

Tobey  (1896),  62  Ark.  84,  34  S.  W.  R.  Stanley  v.   Gaylord  (1848),  1   Cush. 

531:  Soltau  v.  Gerdau  (1890),  119  N.  (Mass.)  536,  48  Am.  Dec.  643. 

Y.  380,  23  N.  E.  R.  864,  16  Am.  St.  R.  -  Saltus  v.  Everett,  supra. 

147 


§  156.]  LAW  OF  SALE.  [BOOK  I. 

which  has  not  been  introduced  among  us.  '  It  has  been  fre- 
quently held  in  this  country  that  the  English  law  of  markets 
overt  had  not  been  adopted,  and  consequently,  as  a  general 
rule,  the  title  of  the  true  owner  cannot  be  lost  without  his  con- 
sent.' " 

§  156.  Possession  alone  insufficient  evidence  of  title. —  It 

is  a  popular  impression  which  has  barely  enough  apparent 
foundation  to  make  it  specious,  that  possession  is  sufficient  evi- 
dence of  ownership.  A  moment's  consideration,  however,  will 
show  the  fallacy.  It  is  true  that  ownership  ordinarily  carries 
with  it  the  right  of  possession;  but  the  reverse  of  this  idea  by 
no  means  follows,  for  possession  is  very  far  from  carrying  with 
it  the  right  of  ownership.  Whether  the  possessor  is  the  true 
owner,  or  a  bailee,  or  the  finder,  or  a  thief,  the  evidence  of  pos- 
session may  be  precisely  the  same,  and  to  make  possession  the 
test  of  ownership  is  obviously  impossible.  It  may  be  prima 
facie  evidence,  but  it  is  nothing  more. 

Whoever,  therefore,  buys  from  one  in  possession  must  see  to 
it,  at  his  peril,  that  the  seller  has  some  other  title  than  that 
which  possession  alone  confers  upon  him.  For  if  the  seller 
were  but  a  bailee  for  the  true  owner,  his  servant  or  lessee,  or  if 
the  seller  were  a  mere  finder,  or  a  thief,  the  purchaser,  however 
innocent  he  may  have  been,  or  however  much  he  may  have 
paid  for  the  property,  can  acquire  no  claim  as  against  the  true 
owner  of  the  goods.1 

"  Simply  intrusting  the  possession  of  a  chattel  to  another  as 
depositary,  pledgee,  or  other  bailee,  or  even  under  a  condi- 
tional executory  contract  of  sale,  is  clearly  insufficient  to  pre- 

1  Cundy  v.  Lindsay  (1878),  3  App.  Joint  Stock  Bank  v.  Simmons,  [1892] 

Cas.  459;  McNeil  v.  Tenth  National  App.    Cas.   201;    Woods    v.   Nichols 

Bank  (1871),  46  N.  Y.  325,  7  Am.  R.  (1900),   21  R.  I.  537.  45  Atl.  R.  548; 

341;  Saltus  v.  Everett,  20  Wend.  (N.  Goodell  v.  Fairbrother  (1878),  12  R.  I. 

Y.)  267,  32  Am.  Dec.  541;  Barnard  v.  233:  Warder  v.  Rublee,  42  Minn.  23, 

Campbell  (1874),  55  N.  Y.  456.  14  Am.  43  N.  W.  R.  569;  Baker  v.  Taylor,  54 

R  289,  58  N.  Y.  73,  17  Am.  R.  208;  Minn.  71,  55  N.  W.  R.  823;  Velsian  v. 

Leigh  v.  Mobile  &  Ohio  R.  Co.,  58  Lewis,  15  Oreg.  549,  16  Pac.  R.  631,  3 

Ala.  178;  Jetton  v.  Tobey  (1896),  62  Am.  St.  R.  184 
Ark.  84,  34  S.  W.   R.  531;   London 

148 


■CK.   III.]  CAPACITY    OF    PARTIES.  [§§   157,158. 

elude  the  real  owner  from  reclaiming  his  property,  in  case  of 
an  unauthorized  disposition  of  it  by  the  person  so  intrusted. 
*  The  mere  possession  of  chattels,  by  whatever  means  acquired, 
if  there  be  no  other  evidence  of  property  or  authority  to  sell 
from  the  true  owner,  will  not  enable  the  possessor  to  give  a 
good  title.'  " l 

§  157.  Possession  coupled  with  indicia  of  ownership. — But 

while  possession  alone  is  thus  not  sufficient  evidence  of  owner- 
ship, it  is  possible  that  the  true  owner  may  have  clothed  the 
possessor  with  such  additional  evidence  of  title  as  to  cause  the 
possessor  to  appear  to  be  the  owner.  "  It  must  be  conceded," 
it  is  said  in  a  leading -cas|,^)"  that,  as  a  general  rule,  applicable 
to  property  other  than  negotiable  securities,  the  vendor  or 
pledgor  can  convey  no  greater  right  or  title  than  he  has.  But 
this  is  a  truism,  predicable  of  a  simple  transfer  from  one  party 
to  another  wrhere  no  other  element  intervenes.  It_does_ not  in- 
terfere with  the  well-established  principle,  that  where  the  true 
owner  holds  out  another,  or  allows  him  to  appear,  as  the  owner 
of,  or  as  having  full  power  of  disposition  over,  the  property, 
and  innocent  third  parties  are  thus  led  into  dealing  with  such 
apparent  owner,  they  will  be  protected.  Their  rights  in  such 
cases  do  not  depend  upon  the  actual  title  or  authority  of  the 
party  with  whom  they  deal  directly,  but  are  derived  from  the 
act  of  the  real  owner,  which  precludes  him  from  disputing,  as 
against  them,  the  existence  of  the  title  or  power  which,  through 
neo-lio-ence  or  mistaken  confidence,  he  caused  or  allowed  to  ap- 
pear  to  be  vested  in  the  party  making  the  conveyance." 

§  158.  What  requisite. —  In  order,  however,  that  this 

rule  shall  operate,  it  is  essential  that  the  acts  relied  upon  as  in- 
dicating ownership  by  the  possessor  shall  be  acts  for  which 
the  true  owner  is  responsible;  for  it  is  clear  that  no  acts  of 
the  possessor  alone  can  suffice  to  cut  off  the  rights  of  the  true 
owner. 

i  Rapallo,  J.,  in  McNeil  v.  Tenth  Na-        2  McNeil   v.  Tenth  National  Bank 
tional  Bank,  supra,  quoting  Denio,  J.,     (1871),  46  N.  Y.  325,  7  Am.  R.  341. 
ia  Covill  v.  Hill,  4  Denio  (N.  Y.),  323. 

149  j  QJY 


§  158.]  LAW  OF  SALE.  [BOOK  I. 

The  acts  relied  upon  must,  moreover,  be  such  as  to  reason- 
ably warrant  the  conclusion  that  the  possessor  was  authorized 
to  sell.  Thus,  for  example,  while  it  may  be  true  that  sending- 
goods  to  an  auction  room,  or  to  any  other  place  to  which 
goods  are  sent  only  to  be  sold,  sufficiently  indicates  that  the 
owner  desires  them  sold,1  still  the  mere  fact  that  one  puts  his 
goods,  for  some  other  purpose  than  sale,  into  the  possession  of 
one  who  may  happen  to  be  a  dealer  in  similar  goods,  does  not 
of  itself  justify  the  conclusion  that  the  dealer  is  to  sell  these 
goods.  "Independently  of  the  provisions  of  the  statute  in  re- 
gard to  the  dealings  with  agents  and  factors,  it  is  very  clear," 
it  is  said,2  "that  the  hare  possession  of  goods  by  one,  though  he 
may  happen  to  be  a  dealer  in  that  class  of  goods,  does  not 
clothe  him  with  power  to  dispose  of  the  goods  as  though  he 
were  owner,  or  as  having  authority  as  agent  to  sell  or  pledge 
the  goods  to  the  preclusion  of  the  right  of  the  real  owner.  If 
he  sells  as  owner  there  must  be  some  other  indicia  of  property 
than  mere  possession.  There  must  be  some  act  or  conduct  on 
the  part  of  the  real  owner  whereby  the  party  selling  is  clothed 
with  the  apparent  ownership  or  authority  to  sell,  and  which 
the  real  owner  will  not  be  heard  to  deny  or  question  to  the 
prejudice  of  an  innocent  third  party  dealing  on  the  faith  of 
such  appearances.  If  it  were  otherwise,  people  would  not  be 
secure  in  sending  their  watches  or  articles  of  jewelry  to  a  jew- 
eler's establishment  to  be  repaired,  or  cloth  to  a  clothing  es- 
tablishment to  be  made  into  garments."  "It  is  not  every 
parting  with  the  possession  of  chattels  or  the  documentary  evi- 

1  Thus  in  Pickering  v.  Busk  (1812),  pose  than  that  of  sale?  Or  if  one 
15  East,  38,  Lord  Ellenborough  said:  send  goods  to  an  auction  room,  can 
*'If  the  principal  send  his  com  mod-  it  be  supposed  that  he  sent  them 
ity  to  a  place  where  it  is  the  ordi-  thither  merely  for  safe  custody? 
nary  business  of  the  person  to  whom  Where  the  commodity  is  sent  in  such 
it  is  confided  to  sell,  it  must  be  in-  a  way,  and  to  such  a  place,  as  to  ex- 
tended that  the  commodity  was  sent  hibit  an  apparent  purpose  of  sale,  the 
thither  for  the  purpose  of  sale.  If  principal  will  be  bound  and  the  pur- 
the  owner  of  a  horse  send  it  to  a  re-  chaser  safe."' 

pository  of  sale, can  it  be  implied  that  2Levi  v.  Booth  (1882),  58  Md.  305, 

he  sent  it  thither  for  any  other  pur-  42  Am.  R.  332. 

150 


CH.  III.]  CAPACITY    OF   PARTIES.  [§§  159,  160. 

dence  of  title,"  it  is  said  in  another  case,1  "  that  will  enable  the 
possessor  to  make  a  good  title  to  one  who  may  purchase  from 
him.  So  far  as  such  a  parting  with  the  possession  is  necessary 
in  the  business  of  life,  or  authorized  by  the  custom  of  trade, 
the  owner  of  the  goods  will  not  be  affected  by  a  sale  by  the 
one  having  the  custody  and  manual  possession.  But  the  owner 
must  go  farther,  and  do  some  act  of  a  nature  to  mislead  third 
persons  as  to  the  true  position  of  the  title." 

§  159.  .  Again,  the  purchaser  must  actually  have  parted 

with  value  in  reasonable  reliance  upon  the  apparent  authority 
so  that  he  will  be  prejudiced  if  the  transaction  is  not  upheld. 
"Two  things  must  concur,"  it  is  saidyU'to  create  an  estoppel 
by  which  an  owner  may  be  deprived  of  his  property,  by  the  act 
of  a  third  person,  without  his  assent,  under  the  rule  now  con- 
sidered: 1.  The  owner  must  clothe  the  person  assuming  to  dis- 
pose of  the  property  with  the  apparent  title  to  or  authority  to 
dispose  of  it;  and  2.  The  person  alleging  the  estoppel  must 
have  acted  and  parted  with  value  upon  the  faith  of  such  appar- 
ent ownership  or  authority,  so  that  he  will  be  the  loser  if  the 
appearances  to  which  he  trusted  are  not  real.  In  this  respect 
it  does  not  differ  from  other  estoppels  in  pais." 

And  lastly,  the  purchaser  must  have  acted  in  ignorance  of 
the  rights  of  the  true  owner,  for  if  he  has  notice  of  the  lat- 
ter's  interests,  or,  what  is  the  same  thing,  knowledge  of  facts 
sufficient  to  put  him  upon  inquiry,  he  can  acquire  no  greater 
title  than  the  apparent  owner  can  rightfully  convey.3 

§  160. Illustrations.—  Many  illustrations  of  these  prin- 
ciples are  to  be  found  in  the  books.  In  a  case  often  cited 4  it 
appeared  that  one  Miers  was,  in  a  small  way,  a  dealer  in  dia- 
monds in  New  York.  His  business  was  to  procure  diamonds 
from  the  larger  dealers  and  sell  them  to  his  customers.    On  one 

•Barnard    v.   Campbell  (1874),   55  Oreg.  69,  49  Pac.  R.   861;   Sloan  v. 

N.  Y.  456,  14  Am.  R.  289.  Hudson  (1898),  119  Ala.  27,  24  S.  R. 

2  Barnard  v.  Campbell,  supra.  458. 

3  Porter  v.  Parks  (1872),  49  N.  Y.  4  Smith  v.  Clews  (1887),  105  N.  Y. 
564;  Perkins  v.  McCullough  (1897),  31  283,  59  Am.  R  502. 

151 


*1^ 


§  161.]  LAW   OF    SALE.  [BOOK   I. 

occasion  he  obtained  from  the  plaintiffs  a  pair  of  diamonds  for 
which  he  gave  them  a  receipt  stating  that  they  were  received 
by  him  "on  approval  to  show  to  my  customers,  said  knobs  to 
be  returned  to  said  A.  H.  Smith  &  Co.  on  demand."  Miers 
sold  these  diamonds  to  the  defendant,  who  bought  them  in  good 
faith,  supposing  Miers  to  be  the  owner,  and  paid  him  the  price. 
Miers  did  not  pay  the  plaintiffs,  and  they  sought  to  recover  the 
diamonds  from  the  defendant;  but  the  court  held  that  the 
plaintiffs,  by  intrusting  them  to  Miea^gpSfown  deaAer  in  such 
articles^to  be  shown  to  a  prospective  purchas^^^d  clothed 
him  with  apparent  authority  to  sell,  and  thereftfr^tfat  the  pur- 
chaser obtained  a  good  title.  The  provision  that  the  diamonds 
were  to  be  returned  upon  demand  was  held  by  the  court  to 
mean  that  they  were  to  be  returned  if  the  purchaser  in  view 
did  not  buy  them. 

On  the  other  hand,  where  the  owner  of  a  diamond  ring  put 
it  into  the  hands  of  a  traveling  trader  in  jewelry  to  obtain  a 
match  for  it,  or,  failing  in  that,  to  get  an  offer  for  it,  and  the 
jeweler  sold  it  to  one  who  bought  in  good  faith,  it  was  held 
that  the  purchaser  acquired  no  title  as  against  the  owner.1  Au- 
thority to  find  a  match  for  it,  or  even  to  get  an  offer  for  it, 
conferred  no  apparent  authority  to  sell,  for  the  owner  thereby 
reserved  to  himself  the  right  to  accept  or  reject  the  offer  if  one 
were  made. 

§  161.  .  In  a  leading  English  case2  it  appeared  that  a 

broker  named  Swallow  had  purchased  for  the  plaintiff,  Pick- 
ering, a  quantity  of  hemp,  which  at  the  plaintiff's  request  was 
transferred  upon  the  books  of  the  wharfinger  to  the  name  of 
Swallow.  Another  lot  subsequently  purchased  was  transferred 
to  the  names  of  "Pickering  or  Swallow,"  which  the  court  held 
to  be  the  same,  so  far  as  the  question  then  involved  was  con- 
cerned, as  though  it  stood  in  Swallow's  name  alone.   The  plaint- 

iLevi  v.  Booth  (1882),  58  Md.  305,        2  pokering  v.  Busk  (1812),  15  East, 
42  Am.  R.  332.     Compare  Rumpf  v.     38. 
Barto  (1894),  10  Wash.  382,  38  Pac.  R. 
1129. 

153 


CH.  III.]  CAPACITY   OF   PARTIES.  [§  162. 

iff  paid  for  the  hemp.  Swallow  afterwards  sold  it  to  a  third 
person,  who  relied  upon  the  entry  in  the  wharfinger's  books 
and  paid  Swallow  for  it;  and  Pickering  sued  the  purchaser  in 
trover  for  the  value.  The  court,  however,  held  that  by  per- 
mitting the  hemp  to  appear  upon  the  books  of  the  wharfinger 
as  the  property  of  Swallow,  the  plaintiff  had  authorized  third 
persons,  who  relied  upon  Swallow's  apparent  ownership,  to  be- 
lieve that  he  had  authority  to  sell  the  hemp,  and  that  Picker- 
ing therefore  could  not. recover. 

§  162.  .  In  a  New  York  case,1  often  relied  upon,  it  ap- 
peared that  the  plaintiff,  who  was  the  owner  of  certain  bank 
shares,  had  delivered  to  his  brokers,  to  secure  a  balance  of  ac- 
count, the  certificate  of  the  shares,  indorsed  with  an  assignment 
in  blank  and  an  irrevocable  power  of  transfer,  signed  and  sealed 
by  himself.  The  brokers,  without  his  knowledge  or  consent, 
pledged  the  shares  to  the  defendant  to  secure  advances  made 
to  them,  the  defendant  having  no  notice  of  the  plaintiff's  in- 
terest. The  plaintiff  brought  action  against  the  defendant  to 
compel  a  restoration  of  the  shares,  but  it  was  held  that  the  de- 
fendant was  entitled  to  hold  the  stock  as  against  the  plaintiff 
for  the  full  amount  of  the  advances  remaining  unpaid.     "  The 

1  McNeil  v.  Tenth  National  Bank  viously  trustworthy  agent  of  a  corpo- 

(1871),  46  N.  Y.  325,  7  Am.  R.  341.  ration  fraudulently  abstracted  from 

For  similar  or  analogous  cases,  see  the  company's  safe  uncanceled  cer- 

Commercial  Bank  v.  Kortright  (1839),  tificates  of  stock,  indorsed  in  blank, 

22  Wend.  (N.  Y.)  348,  34  Am.  Dec.  and  negotiated  them,  it  was  held  that 

317;  Holbrook  v.  Zinc  Co.  (1874),  57  no  title  passed.    Knox  v.  Eden  Musee 

N.  Y.  616,  623;  Bartlett  v.  Board  of  Co.  (1896),  148  N.  Y.  441,  42  N.  E.  R. 

Education    (1871),   59    111.   364,   371;  988. 

Wood's  Appeal  (1880),  92  Pa.  St.  379;        So  where  A.  and  B.  had  a  safety 

Cowdrey  v.  Vandenburgh  (1879),  101  deposit  box  in  common,  and  A.  left 

17.  S.  572;  London  Joint  Stock  Bank  in  the  box  some  certificates  of  stock 

v.  Simmons,  [1892]  App.  Cas.  201.  indorsed    in    blank,    which    B.    ab- 

But  in  order  that  the  rule  of  this  stracted  and  sold  to  a  bona  fide  pur- 
case  should  apply,  it  is  necessary  that  chaser,  it  was  held  that  the  latter 
there  be  something  more  than  the  acquired  no  title  against  A.  Bangor 
mere  intrusting  to  a  servant  of  a  Electric  Co.  v.  Robinson  (1892),  52 
chattel  and  the  consequent  oppor-  Fed.  R.  520. 
tunity  for  theft.    Hence  where  a  pre- 

153 


§§  163,  164.]  LAW    OF    SALE.  [BOOK    I. 

holder  of  such  a  certificate  and  power,"  said  the  court,  "  pos- 
sesses all  the  external  indicia  of  title  to  the  stock,  and  an  ap- 
parently unlimited  power  of  disposition  over  it.  He  does  not 
appear  to  have,  as  is  said  in  some  of  the  authorities  cited  con- 
cerning the  assignee  of  a  chose  in  action,  a  mere  equitable  in- 
terest, which  is  said  to  be  notice  to  all  persons  dealing  with 
him  that  they  take  subject  to  all  equities,  latent  or  otherwise, 
of  third  parties;  but  apparently  the  legal  title  and  the  means 
of  transferring  such  title  in  the  most  effectual  manner." 

§  163. .  In  a  case  before  the  supreme  court  of  the  United 

States,1  it  appeared  that  the  plaintiff,  who  resided  in  California, 
instructed  his  agent  in  New  York  to  cause  a  steamboat  to  be 
built,  giving  the  agent  express  directions  to  hold  himself,  the 
ao-ent,  out  as  owner,  and  to  cause  the  vessel  to  be  enrolled  in 
his,  the  agent's,  own  name,  as  the  principal  did  not  wish  to 
appear,  or  be  known,  as  the  owner.  The  agent  followed  these 
instructions,  but,  upon  the  completion  of  the  vessel,  sold  her  to 
the  defendant,  who  purchased  in  good  faith,  relying  upon  the 
agent's  apparent  ownership,  and  paid  the  agent  her  full  value. 
The  agent  converted  the  proceeds  to  his  own  use,  and  the  plaint- 
iff brought  the  action  to  establish  his  title  as  against  the  pur- 
chaser. But  it  was  held  here  also  that,  having  held  the  agent 
out  to  the  world  as  owner,  and  having  intentionally  clothed 
him  with  the  documentary  evidence  of  ownership,  the  plaintiff 
could  not  recover  from  one  who,  in  good  faith,  has  purchased 
the  property  in  reliance  upon  such  apparent  ownership. 

|  164-.  .  In  another  case2  the  plaintiff  had  employed  an 

agent  to  purchase  a  horse.     The  agent  made  the  purchase,  but 

i  Calais  Steamboat  Co.  v.  Van  Pelt  him  to  a  bona  fide  purchaser  will 

(1862),  2  Black  (67  U.  S.),  372.  transfer  a  good  title.     O'Connor  v. 

Where  the  owner  of  a  wagon,  for  Clark  (1895),  170  Pa.  St.  318,  32  Atl. 

his  own  gain,  allowed  the  name  and  R.  1029. 

occupation  of  another  person  to  be        2  Nixon  v.  Brown  (1876),  57  N.  H. 

painted  on  it,  and  permitted  it  to  re-  34.     See  also  Goldstone  v.  Merchants' 

umiii  in  the  possession  of  that  per-  Ice  &   Cold  Storage  Co.   (1899),  123 

son.  he  so  clothes  the  latter  with  the  Cal.  625,  56  Pac.  R.  776. 
indicia  of  ownership  that  a  sale  by 

154 


CH.  III.]  CAPACITY    OF   PARTIES.  [§   165. 

took  the  bill  of  sale  in  his  own  name.  He  informed  his  prin- 
cipal of  the  purchase,  showed  him  the  bill  of  sale,  and  promised 
to  execute  a  similar  one  to  the  principal,  but  did  not  do  so.  It 
was  then  agreed  that  the  agent  should  keep  the  horse  in  his 
own  possession  for  the  purpose  of  training  him,  and  the  agent 
went  away  taking  with  him  the  horse  and  the  bill  of  sale. 
Afterwards  the  agent  sold  the  horse  to  the  defendant,  who 
bought  it  in  good  faith,  in  reliance  upon  the  bill  of  sale,  and 
paid  the  agent  the  money,  with  which  the  latter  decamped. 
The  plaintiff  sued  this  purchaser  in  trover,  but  was  not  per- 
mitted to  recover,  because  he  had  allowed  his  agent  to  appear 
to  be  the  owner,  and  had  clothed  him  with  the  indicia  of  title. 

§  1G5.  Limitations.— But  in  order  to  estop  the  true 

owner  it  is,  as  has  been  seen,  indispensable  not  only  that  he 
has  clothed  the  person  assuming  to  dispose  of  the  property 
with  the  apparent  title  to  it,  or  with  apparent  authority  to  dis- 
pose of  it,  but  also  that  the  person  asserting  the  estoppel  must 
have  acted,  and  parted  with  value,  upon  the  faith  of  such  ap- 
parent ownership  or  authority,  so  that  he  will  be  prejudiced  if 
the  appearances  to  which  he  trusted  are  not  real.  This  prin- 
ciple is  well  illustrated  by  a  case  which  received  elaborate  con- 
sideration in  the  court  of  appeals  of  New  York.1     It  there 

i  Barnard   v.   Campbell  (1874),   55  that  he  was  agent  for  Willits,  and 

N.  Y.  456,  14  Am.  R.  289,  58  N.  Y.  73,  ordered  five  barrels  of  whisky  sent 

17  Am.  R.  208.  to    the    latter.      The    McGoldricks 

In  McGoldrick  v.  Willits  (1873),  52  shipped  the  whisky  by  rail  addressed 

N.  Y.  612,  one  Roberts,  who  was  a  re-  to  Willits  at  his  place  of  business, 

tail  liquor  dealer  on  Long   Island,  After  the  whisky  reached  the  depot, 

went  to  Willits,  who  was  also  a  re-  Roberts  went  to  Willits.  showed  him 

tail  liquor  dealer  in  the  same  vicinity,  an  invoice  of  five  barrels  of  whisky 

and,  saying  to  Willits  that  he  was  purporting  to  come  from  -  Lewis  & 

carrying  on  a  distillery,  in  the  name  Co.,"  told  him  the  whisky  was  at  the 

of  another,  at  Brooklyn,  offered  to  station,  and  they  both  went  to  the 

sell  Willits  five   barrels  of  whisky,  station,  where  they  found  the  whisky 

like  a  sample  which  he  then   pro-  shipped  by  McGoldrick.   Willits  paid 

duced.    Willits  ordered  of  Roberts  the  freight,  obtained  the  whisky,  and 

the  whisky.     Roberts  then  went  to  paid  Roberts  for  it.  When  McGoldrick 

N.  P.  McGoldrick,  who  kept  a  whole-  demanded  payment,  Willits  refused 

sale  liquor  store  in  Brooklyn,  said  on  the  ground  that  he  bought  the 

155 


§  105.] 


LAW  OF  SALE. 


[book 


appeared  that  the  defendants,  after  some  negotiations,  had  pur- 
chased of  one  Jeffries,  on  the  21st  of  August,  a  quantity  of 
linseed,  and,  at  his  request,  had  given  him  their  notes  in  pay- 
ment. These  notes  Jeffries  at  once  pledged  to  third  persons 
as  collateral  to  a  loan  to  himself.  Jeffries  did  not  have  the 
linseed  at  the  time,  though  he  had  been  negotiating  with  the 
plaintiffs  for  it,  and  on  the  21st  of  August  had  made  a  contract 
with  them  for  its  purchase.  On  the  24th  of  August,  by  false 
and  fraudulent  representations,  he  induced  them  to  deliver  it  to 
him  without  payment.  He  sent  the  linseed  to  the  defendants 
on  the  24th  of  August,  and  on  the  next  day  mailed  them  the 
bill  of  lading.  On  August  27th  Jeffries  failed,  not  having  paid 
for  the  linseed,  and  the  plaintiffs,  on  account  of  the  fraudulent 
representations,  rescinded  the  sale  to  Jeffries  and  demanded 
the  linseed  of  the  defendants.     Upon  their  refusal  to  surrender 


whisky  of  Roberts  and  had  paid  him 
for  it.  McGoldrick  sued  Willits  and 
was  allowed  to  recover,  the  court 
holding  that  McGoldrick  had  done 
nothing  to  clothe  Roberts  with  any 
apparent  title  to  or  authority  over 
the  goods.  See  also  other  cases  cited 
in  notes  to  §  149,  ante. 

In  Armstrong  v.  Freimuth  (1899), 
78  Minn.  94,  80  N.  W.  R.  862,  it  ap- 
peared that  one  Van  Baalen  executed 
a  bill  of  sale  of  a  piano  which  he 
owned  to  W.,  but  it  was  in  fact  a 
mortgage  to  secure  a  usurious  loan. 
It  was  recorded.  W.  then  executed 
a  bill  of  sale  of  the  piano  to  the 
plaintiff.  Van  Baalen  at  all  times 
held  possession  of  the  piano.  Plaint- 
iff contended  that  Van  Baalen  was 
estopped  to  show  that  the  bill  of  sale 
was  a  chattel  mortgage  to  secure  a 
usurious  loan.  Held,  that  the  owner 
is  estopped  from  asserting  his  claim 
as  against  a  purchaser  only  when  he 
invests  another  with  the  indicia  of 
an  absolute  title  thereto,  and  such 
person  while  actually  in  possession 


sells  to  a  bona  fide  purchaser  with- 
out notice  and  for  value.  But  here 
the  plaintiff's  vendor  never  had  pos- 
session. 

One  who  deposits  wheat  for  storage, 
knowing  that  it  is  to  be  commingled 
with  wheat  owned  by  the  warehouse- 
man, and  that  the  latter  is  selling 
and  publicly  shipping  from  the  com- 
mon mass,  is  estopped  to  assert  title 
as  against  an  innocent  purchaser 
from  the  warehouseman  in  the  usual 
course  of  business.  Preston  v.  With- 
erspoon  (1886),  109  Ind.  457,  58  Am. 
R.  417. 

The  plaintiff  consigned  a  piano  to 
the  firm  of  B.  &  E.,  to  be  sold  for 
cash.  With  the  assent  of  E.,  B.  took 
the  piano  to  his  own  house,  where  he 
used  it  for  nine  or  ten  months,  when 
he  sold  it,  as  belonging  to  himself  or 
wife,  to  the  defendant,  who  paid  a 
fair  price  and  bought  in  good  faith. 
Held,  that  the  plaintiff  could  not  re- 
cover the  piano  from  such  purchaser. 
Bias  v.  Chickering  (1885),  64  Md.  348, 
54  Am.  R,  770. 


156 


CH.  III.]  CAPACITY   OF   PARTIES.  [§  166. 

it,  plaintiffs  brought  replevin.  The  defendants  assumed  the 
position  of  bona  fide  purchasers  for  value,  and,  claiming  that 
they  had  purchased  upon  the  faith  of  the  possession  conferred 
by  the  plaintiffs  upon  Jeffries,  invoked  the  principle  of  estoppel 
for  their  protection.  But  the  court  held  that  every  element 
of  estoppel  was  wanting.  At  the  time  defendants  purchased 
the  linseed  and  parted  with  their  notes,  Jeffries  had  neither  the 
possession  nor  the  right  of  possession  of  the  linseed;  nor  had 
he  any  documentary  evidence  of  title,  or  any  indicia  of  owner- 
ship or  of  dominion  over  the  property  of  any  kind.  The  plaint- 
iff had  then  done  nothing  to  induce  the  defendants  to  put  their 
faith  m,  or  give  credit  to,  the  claim  of  Jeffries  of  a  right  to  sell 
the  property.  The  defendants  parted  with  their  notes,  not 
upon  the  apparent  ownership  of  Jeffries,  but  upon  his  assertion 
of  a  right  of  which  the  plaintiffs  had  no  knowledge,  and  for 
which  they  were  in  no  way  responsible. 

§  166.  Appearance  of  title  from  possession  of  bill  of  lad- 
ing or  warehouse  receipt.— An  appearance  of  title  may  very 
effectually  be  created,  though  no  title  may  in  fact  exist,  by  the 
possession  of  a  bill  of  lading  of  the  goods.  While  not  strictly 
negotiable,  in  the  absence  of  a  statute  declaring  them  so,1  bills 
of  lading  are  regarded,  in  commercial  transactions,  as  being,  in 
a  very  complete  sense,  the  representatives  of  the  goods  them- 
selves;2 warehouse  receipts  also,  in  many  States,  by  statute  or 
usage,  stand  upon  the  same  footing;3  and  if  the  true  owner  of 
the  goods  permits  another  to  appear  to  be  the  legal  holder  of 
a  bill  of  lading-  or  warehouse  receipt  for  them,  he  will  so  far 
clothe  him  with  an  ostensible  title  that  a  bona  fide  purchaser, 
upon  the  indorsement  and  delivery  to  him  of  the  bill  of  lad- 

iSee,  for  example,  Shaw  v.  Rail-  (1878),  52  Cal.  611,  28  Am.  R.  647; 

road  Co.  (1879),  101  U.  S.  557.  Broadwell  v.  Howard  (1875),  77  111. 

2  See  Friedlander  v.  Railway  Co.  305;  Merchants'  Bank  v.  Hibbard 
(1888),  130  U.  S.  416.  (1882),  48  Mich.  118,  42  Am.  R.  465; 

3  See  Gibson  v.  Stevens  (1850),  49  Allen  v.  Maury  (1880),  66  Ala.  10; 
U.  S.  (8  How.)  384;  Adams  v.  Foley  Bank  of  Newport  v.  Hirsch  (1894), 
(1856),  4  Iowa,  44;  Davis  v.  Russell  59  Ark.  225,  27  S.  W.  R  74. 

157 


§   167.]  LAW    OF    SALE.  [BOOK    I. 

ing  or  warehouse  receipt,  will  obtain  an  indefeasible  title  to 
the  goods.1 

This  will  be  true,  as  in  the  case  of  a  sale  of  the  goods  them- 
selves, if  the  true  owner  voluntarily  permitted  the  bill  of  lad- 
ing or  receipt  to  be  so  possessed,  even  though  his  consent  was 
induced  by  fraud  or  mistake;2  but  it  will  not  be  true  where 
the  true  owner  had  not  consented,  but  the  bill  of  lading  or  re- 
ceipt was  obtained  against  his  will,  as  by  finding,  theft,  or  sim- 
ilar act.3 

§  167.  Ostensible  title  of  vendor  permitted  o  retain  pos- 
session.—  Somewhat  akin  to  the  questions  here  being  consid- 
ered is  that  of  the  effect  of  leaving  the  seller  in  possession 
after  a  sale  of  the  goods.  It  is,  in  general,  true,  as  will  be 
seen,  that  delivery  of  possession  is  not  essential  to  the  transfer 
of  the  title,  at  least  as  between  the  parties;  but  where  one  pur- 
chaser of  the  goods  voluntarily  leaves  them  in  the  possession  of 
the  seller,  and  the  latter  then  sells  them  again  to  another  who 
buys  in  good  faith,  paying  value  in  ignorance  of  the  rights  of 
the  first  purchaser,  and  obtains  possession  of  the  goods,  the 
question  of  the  respective  rights  of  the  two  purchasers  presents 
obvious  difficulties.  The  rule  is  often  declared  to  be,  as  will 
be  seen  hereafter,  that,  of  two  equally  innocent  purchasers 
from  the  same  vendor,  he  who  first  obtains  possession  of  the 
goods  shall  hold  them;  though  it  must  be  conceded  that  the 
condition  of  the  law  upon  this  question  is  far  from  satisfactory. 
The  matter  is  usually  dealt  with  under  the  head  of  fraud,  and 
it  is  so  discussed  in  this  book  in  later  sections; 4  but  the  sugges- 
tion has  sometimes  been  made  that,  by  leaving  the  vendor  in 
possession,  the  first  vendee  so  clothes  the  vendor  with  the 
ostensible  title  that  he  should  not  be  permitted  to  recover  as 

1  Conard  v.  Atlantic  Ins.  Co.  (1828),  -  Dows  v.  Greene  (1862),  24  N.  Y.  638. 

1  Pet.  (U.  S.)  386;  Winslow  v.  Norton  ^See,  per  Lord  Campbell,  in  Gur- 

(1849),  29  Me.  419;  Newhall  v.  Central  ney  v.  Behrend  (1854),  3  El.  &  Bl.  633, 

Pac.  R  Co.  (1876),  51  Cal.  345,  21  Am.  77  Eng.  Com.  L.  622;  Brower  v.  Pea- 

R  713;  Barber  v.  Meyerstein  (1870),  body  (1855),  13  N.  Y.  121;  Shaw  v. 

L.  R.  4  H.  L.  317;  Cahn  v.  Packet  Railroad  Co.  (1879),  101  U.  S.  557. 

Co.,  [1899]  1  Q.  B.  643.  4  See  jjost,  §§  979-992. 

158 


CH.  III.]  CAPACITY    OF   PARTIES.  [§  168. 

against  a  later  bona  fide  purchaser  who  obtains  possession. 
"  Under  such  appearances  of  ownership,"  it  is  said,  "  every  man 
is  justified  in  regarding  him  as  being  still  the  owner." l 

As  has  been  stated,  however,  leaving  the  vendor  in  posses- 
sion has  usually  been  deemed  evidence,  more  or  less  conclusive 
in  various  jurisdictions,  of  either  actual  or  constructive  fraud ; 
and  however  plausible  may  be  the  suggestion  which  makes  its 
notice  in  this  place  permissible,  it  is  deemed  wiser  to  defer  its 
fuller  treatment  until  the  subject  of  fraud  upon  creditors  and 
subsequent  purchasers  is  reached.2 

§  168.  Ostensible  title  under  Factors  Acts.—  An  ostensible 
title  may  also  be  acquired  under  the  operation  of  the  statutes 
generally  known  as  Factors  Acts.  By  the  ordinary  rules  of  the 
common  law,  a  factor  or  other  agent,  having  the  goods  of  his 
principal  in  his  possession,  could  convey  no  title,  even  to  a  bona 
fide  holder,  by  any  transfer  or  pledge  of  his  principal's  goods 
in  payment  or  security  for  his  own  debts.3  But  inasmuch  as 
the  factor  often  deals  in  his  own  goods  as  well,  and  it  is  im- 
practicable, if  not  impossible,  in  many  cases  for  third  persons 
dealing  with  him  to  know  whether  the  goods  are  his  own,  or 
whether  he  has  authority  to  pledge  them,  statutes  have  been 
passed  in  England  and  in  several  of  the  States 4  designed  to  pro- 
tect those  who  have  dealt  with  the  factor  in  good  faith  in  re- 
liance upon  his  apparent  title. 

Thus,  for  example,  the  statute  in  Kew  York  provides  that 
"  every  factor  or  other  agent  intrusted  with  the  possession  of 
any  bill  of  lading,  custom-house  permit,  or  warehouse-keeper's 
receipt  for  the  delivery  of  any  such  merchandise,  and  every 
such  factor  or  agent  not  having  the  documentary  evidence  of 
title  who  shall  be  intrusted  with  the  possession  of  any  mer- 
chandise for  the  purpose  of  sale,  or  as  a  security  for  any  ad- 
vances to  be  made  or  obtained  thereon,  shall  be  deemed  to  be 

i  Streeper  v.  Eckart  (1837),  2  Whart.  4  Such  statutes  exist  in  New  York. 

(Pa.)  302;  Daniels  v.  Nelson  (1868),  41  Maine,     Massachusetts,     Maryland, 

Vt  161.  Ohio,  Kentucky,  Pennsylvania,  Wis- 

2  Post.  £§  930,  979.  consin,  and  Rhode  Island. 

3  See  Mechem  on  Agency,  §  994. 

159 


§  169.] 


LAW  OF  SALE. 


[BOOK  I. 


the  true  owner  thereof,  so  far  as  to  give  validity  to  any  con- 
tract made  by  such  agent  with  any  other  person,  for  the  sale 
or  disposition  of  the  whole  or  any  part  of  such  merchandise, 
for  any  money  advanced  or  negotiable  instrument  or  other 
obligation  in  writing  given  by  such  other  person  upon  the  faith 
thereof." * 


§169. 


How  such  statutes  construed. —  Statutes  of  this 


sort,  being  in  contravention  of  the  common  law,  are  subject  to 
a  strict  construction,  and  no  one  can  obtain  the  benefit  of  them 
who  does  not  bring  himself  within  their  terms.2  Thus,  for  ex- 
ample, the  acts  do  not  apply  to  every  agent,  but  only  to  a  factor 
or  other  agent  employed  in  like  mercantile  transactions;3  he 
must  actually  have  been  employed  as  such;*,  the  goods  must 
have  been  intrusted  to  him  for  sale;5  his  possession  must  have 
been  with  the  consent  of  the  owner,  and  not  obtained  by  theft 
or  trick;6  the  person  who  claims  the  protection  of  the  statute 
must  have  acted  in  good  faith,7  without  notice  of  the  true  own- 
er's rights,8  and  he  must  have  parted  with  value  in  the  ordinary 


i  Rev.  Stats,  of  New  York,  vol.  Ill, 
p.  2006. 

2  Victor  Sewing  Maeh.  Co.  v.  Hel- 
ler (1878).  44  Wis.  265;  Stevens  v. 
Cunningham  (1862),  3  Allen  (Mass.), 
491. 

3  Thus  in  Heyman  v.  Flewker  (1863), 
13  Com.  B.  N.  S.  519,  106  Eng.  Com. 
L.  518,  it  is  said  that  "the  term 
'  agent '  does  not  include  a  mere  serv- 
ant or  care  taker,  or  one  who  has 
possession  of  goods  for  carriage,  safe 
custody,  or  otherwise  as  an  inde- 
pendent contracting  party;  but  only 
persons  whose  employment  corre- 
sponds to  that  of  some  known  kind 
of  commercial  agent,  like  that  class 
(factors)  from  which  the  act  has 
taken  its  name."  To  like  effect:  Bush 
v:  Fry  (1888),  15  Ont.  122;  City  Bank 
v.  Barrow  (1880),  5  App.  Cas.  664; 
Johnson  v.  Credit  Lyonnais  (1878), 
2  C.  P.  Div.  224,  3  id.  32;  Cole  v. 


Northwestern  Bank  (1874),  L,  R.  9  C. 
P.  470,  10  id.  369. 

4  See  First  Nat.  Bank  v.  Shaw  (1874), 
61  N.  Y.  283;  Mechanics'  Bank  v. 
Farmers'  Bank  (1875),  60  N.  Y.  40; 
Farmers'  Nat.  Bank  v.  Atkinson 
(1878),  74  N.  Y.  587;'  Davis  v.  Bigler 
(1869),  62  Pa.  St.  242. 

5  Nickerson  v.  Darrow  (1862),  5 
Allen  (Mass.),  419;  Thacher  v.  Moors 
(1880),  134  Mass.  156. 

e  Soltau  v.  Gerdau  (1890),  119  N.  Y. 
380,  23  N.  E.  R.  864;  Prentice  Co.  v. 
Page  (1895),  164  Mass.  276,  41  N.  E. 
R.  280;  Cahn  v.  Packet  Co.,  [1899]  1 
Q.  B.  643. 

'  Cleveland  v.  Shoeman  (1883),  40 
Ohio  St.  176;  Price  v.  Wisconsin  M. 
&  F.  Ins.  Co.  (1877),  43  Wis.  267. 

8  Macky  v.  Dillinger  (1873),  73  Pa.  St. 
85;  Dorrance  v.  Dean  (1887),  106  N.  Y. 
203.  See  Price  v.  Insurance  Co., 
supra. 


160 


CH.  III.] 


CAPACITY    OF   PARTIES. 


[§§  170,  171. 


course  of  business  in  reliance  upon  the  factor's  apparent  au- 
thority.1 

§  170.  Appearance  of  title  by  conduct  — General  estoppel. 

And  finally,  without  going  further  into  details,  it  may  be  said 
that  whenever  and  however  the  true  owner  of  goods  by  his 
conduct  — his  words,  his  acts,  his  failure  to  act  —  has  reason- 
ably led  another  person  to  appear  to  be  the  owner  of  his  goods, 
_ot  authorized  to  dispose  of  them,  he  will  not  be  permitted  to 
deny  such  ownership  or  authority  to  the  prejudice  of  a  third 
person  who  in  good  faith  and  with  reasonable  prudence  has 
parted  with  value  upon  the  strength  of  such  appearances.2 

IV. 

Of  Sales  and  Purchases  by  Persons  Acting  in  a  Repre- 
sentative Capacity. 
§  171.  In  general.— Again,  it  may  be  that  the  person  who 
undertakes  to  buy  or  sell  is  acting,  not  on  his  own  account, 
but  as  the  representative  of  another;  and  something  therefore 
should,  perhaps,  be  said  concerning  the  origin,  nature  and  ex- 

his  long  delay  estopped  him  to  set 
up  title  as  against  the  bona  fide  pur- 
chaser for  value. 

In  Grace  v.  McKissack  (1873),  49 
Ala.  163,  a  person  sold  and  delivered 
property  on  condition  that  the  title 
should  remain  in  him  until  the  price 
was  paid  or  secured  by  a  mortgage. 
A  third  person,  proposing  to  buy  the 
property  from  the  vendee,  informed 
the  vendor  of  that  fact,  and  asked 
him  if  he  had  any  mortgage  upon  it. 
The  vendor  replied  that  he  had  none, 
and  did  not  expect  to  have  any ;  and 
said  nothing  as  to  his  claim  of  title. 
The  third  person  thereupon  bought 
the  property.  Held,  that  the  vendor 
■was  estopped  to  set  up  title  against 
him.  See  also  Stewart  v.  Munford 
(1878),  91  111.  58;  Powers  v.  Harris 
(1880),  68  Ala.  409. 


1  Cleveland  v.  Shoeman,  supra. 

2  See  Freeman  v.  Cooke,  2  Exch. 
654;  Pickard  v.  Sears,  6  Adol.  &  EL 
469,  33  Eng.  Com.  L.  257;  Gregg  v. 
Wells,  10  AdoL  &  El.  90,  37  Eng.  Com. 
L.  71;  Knights  v.  Wiffin,  L  R.  5  Q. 
B.  660.  In  Leavitt  v.  Fairbanks  (1899), 
92  Me.  521,  43  AtL  R.  115,  it  appeared 
that  Leavitt  delivered  a  mare  to  one 
Sawyer  to  be  kept  through  the  win- 
ter and  returned  in  good  condition 
the  next  spring.  Sawyer  sold  the 
mare  to  the  defendant,  who  had  no 
knowledge  of  plaintiff's  title  and  no 
reason  to  suspect  it.  Plaintiff  gave 
defendant  no  notice  of  his  title  for 
seventeen  months  after  he  knew  of 
the  sale,  meanwhile  endeavoring  to 
obtain  the  price  from  Sawyer.  Held, 
that  his  action  was  a  ratification  of 
Sawyer's  sale,  and  furthermore  that 


^ 


11 


161 


§§  172-174.]  LAW    OF    SALE.  [BOOK    I. 

tent  of  the  power  of  him  who  so  undertakes  to  represent  another, 
although  the  subject  may  not  be  strictly  one  involving  the  ca 
pacity  of  parties. 

This  general  question  of  authority  to  buy  and  sell  as  agent 
has  been  fully  discussed  by  the  present  writer  in  another  place; l 
but  a  brief  review  of  the  subject  seems  germane  to  the  present 
endeavor,  and  will  be  given. 

§  172,  Nature  of  the  authority. —  It  will  be  obvious  upon 
a  slight  consideration  of  the  matter  that  the  authority  of  one 
person  to  act  for  another  in  buying  and  selling  personalty  may 
be  either  (1)  such  as  the  law  alone  creates  and  confers,  even 
without  the  consent  of  the  person  to  be  bound;  or  (2)  such  cre- 
ated and  conferred  by  the  act  of  the  party  to  be  represented. 
In  the  latter  case,  of  authority  conferred  by  act  of  party,  the 
authority  may  have  been  conferred  either  (a)  expressly,  or  it 
may  have  arisen  (b)  by  implication  from  some  other  act,  cir- 
cumstance or  condition. 

It  will  be  found,  moreover,  that  somewhat  different  consid- 
erations are  presented  where  the  question  is  one  of  power  to 
buy  than  where  the  power  to  sell  is  involved;  and  it  will  be 
convenient,  therefore,  to  consider  each  question  separately. 

1.  Authority  to  Sell  Personal  Property. 

§  173.  How  considered. —  Applying  the  distinction  referred 
to  in  the  preceding  section,  it  will  be  convenient  to  consider, 
first,  the  question  of  the  power  to  sell  when  conferred  by  law; 
and  second,  the  power  to  sell  when  it  arises  either  expressly 
or  impliedly  from  the  acts  of  the  parties. 

a.  Authority  to  Sell  Conferred  by  Law. 

§  174.  Chief  illustrations. — With  a  single  exception,  per- 
haps, the  question  of  the  power  to  sell  conferred  by  law  does 
not  greatly  concern  us.  It  will  be  found  in  later  sections  that 
a  vendor  of  goods  has,  in  many  cases,  a  power  conferred  by 

1  See  Mecliem  on  Agency,  §£  335-362;  §§  3G3-370;  and  elsewhere  in  same 
work. 

1G2 


€H.  III.]  CAPACITY    OF    PARTIES.  [§  175. 

law  to  sell  the  goods,  as  the  goods  of  his  vendee,  to  enforce  the 
payment  of  the  price,  and  this  question  will  there  be  fully  dis- 
cussed.1 Aside  from  this,  the  chief  instances  of  the  kind  of 
power  now  under  consideration  are:  the  power  of  the  master 
of  a  ship,  in  case  of  absolute  necessity,  to  sell  the  ship  or  cargo; 
the  power  of  the  pledgee  to  sell  the  goods  pawned;  the  power 
of  a  landlord  to  distrain  and  sell  for  the  payment  of  rent;  the 
power  of  the  sheriff  or  other  similar  officers  to  sell  goods  upon 
execution;  the  power  of  the  tax  collector  to  seize  and  sell 
goods  for  the  payment  of  taxes;  and  other  like  cases  of  stat- 
utory authority,  none  of  which  falls  within  the  field  now  being 
considered. 

b.  Authority  to  Sell  Conferred  by  Act  of  Party. 

§  175.  Express  authority  to  sell. —  The  authority  to  sell 
may  of  course  be  conferred  expressly  and  under  a  great  va- 
riety of  circumstances  to  which  it  is  not  necessary  here  to 
refer.2  It  may  have  been  previously  given  or  result  from  a  sub- 
sequent ratification  by  the  principal  with  full  knowledge  of  the 
material  facts  —  such  a  ratification  being,  in  general,  the  equiv- 
alent of  a  prior  authorization.3  Such  an  authority  is  to  be  ex- 
ercised for  the  benefit  of  the  principal,  and  not,  under  any 
circumstances,  for  the  personal  benefit  of  the  agent.4  He  will 
not  be  permitted,  without  the  full  knowledge  and  consent  of 
his  principal,  to  sell  to  himself,  either  directly  or  indirectly,  or 
otherwise  deal  with  himself  on  his  principal's  account.5 

1  See  post,  §§  1621  et  seq.  §  354;    Gould  v.  Blodgett  (1881),  61 

2  See  Mechem  on  Agency,  §  335  N.  H.  115;  Wilson  v.  Wilson  (1897), 
et  seq.  181  Pa.  St.  80,  37  Atl.  R.  117;  Read  v. 

3  Mechem  on  Agency,  §§  109-189.  Cumberland,  etc.  Co.  (1894),  93  Tenn. 

4  Mechem  on  Agency,  §§344,354.  482,  27  S.  W.  R.  660;  or  take  pay- 
Thus,  for  example,  he  cannot  set  off  ment  to  himself  for  his  principal's 
against  the  price  due  his  principal  goods,  McGrath  v.  Vanaman  (1895), 
debts  owing  by  himself,  Mechem  on  53  N.  J.  Eq.  459,  32  Atl.  R.  686;  or  ac- 
Agency,  §  344;  Talboys  v.  Boston  cept  a  cancellation  of  his  own  debt 
(1891),  46  Minn.  144,  48  N.  W.  R  688;  in  payment.  Smith  v.  James  (1890), 
or  sell  or  deliver  the  goods  in  pay-  53  Ark.  135,  13  S.  W.  R.  701. 

ment  of  his  own  debt,  or  pledge  them        5  Mechem  on  Agency,  §  461. 
for  his  own  debt,  Mechem  on  Agency, 

163 


175.] 


LAW    OF    SALE. 


[BOOK   I. 


Authority  to  sell  can  only  justify  such  dispositions  as  are,  in 
legal  effect,  sales,  and  it  therefore  does  not  warrant  a  pledge, 
a  mortgage,  or  an  exchange  or  barter.1  If  the  authority  be  to 
sell,  without  stipulating  as  to  the  manner,  it  is  to  be  construed 
as  referring  to  a  private  and  not  to  a  public  or  auction  sale.2 
If,  on  the  other  hand,  a  sale  by  auction  is  directed,  a  private 
sale  would  not  be  authorized.3 

General  power  to  sell,  without  restrictions,  would  carry  with 
it  implied  power  to  fix  the  price  and  agree  upon  the  terms, 
within  the  usual  or  reasonable  limits.4  The  principal  himself, 
however,  may  prescribe  the  price  and  terms,  and  his  restric- 
tions will  be  binding  upon  the  agent  and  also  upon  third  per- 
sons who  are  charged  with  notice.  Mere  private  instructions, 
however,  could  not  affect  third  persons  actually  ignorant  of 
them,  who  have  dealt  with  the  agent  in  good  faith  and  in  the 
exercise  of  reasonable  prudence;5  though  even  here  the  terms 
or  price  fixed  by  the  agent  may  be  so  unusual  or  unreasonable 
as  to  fairly  put  a  prudent  man  upon  his  guard.6 


1  Mechem  on  Agency,  §§  356,  361, 
352. 

2  Mechem  on  Agency,  §  358. 
a  Mechem  on  Agency,  §  358. 

4  Mechem  on  Agency.  §  362;  Day- 
light Burner  Co.  v.  Odlin  (1871),  51 
N.  H.  56,  12  Am.  R  45;  Putnam  v. 
French  (1881),  53  Vt.  402,  38  Am.  R. 
6S2;  Bigelow  v.  Walker  (1852),  24  Vt. 
149,  58  Am.  Dec.  156;  Watts  v.  How- 
ard (1897),  70  Minn.  122,  72  N.  W.  R. 
840;  Smith  v.  Droubay  (1899),  20 
Utah,  443,  58  Pac.  R.  1112;  Taylor  v. 
Bailey  (1897),  169  111.  181,  48  N.  E.  R. 
200.  Where  the  only  apparent  lim- 
itation upon  the  agent's  authority 
was  to  sell  at  "proper  prices,"  the 
sale  cannot  be  defeated  because  the 
principal  claims  that  the  price  fixed 
by  the  agent  was  too  low,  unless  it 
was  so  low  as  to  plainly  show  fraud 
on  his  part.  U.  S.  School  Furniture 
Co.  v.  Board  of  Education  (1897),  — 
Ky.  — ,  38  S.  W.  R.  864. 


5  Mechem  on  Agency,  §  362. 

6  Mechem  on  Agency,  §  362.  Thus 
where  a  traveling  salesman  offered 
to  sell  to  a  customer  goods  worth 
$860  for  $382.50,  it  was  held  that  the 
customer  must  have  known  that  the 
salesman  was  joking  or  perpetrating 
a  fraud  upon  his  principal,  and  there- 
fore the  principal  was  not  bound. 
Brown  Grocery  Co.  v.  Beckett  (1900), 
—  Ky.  — ,  57  S.  W.  R.  458. 

In  Brown  v.  West  (1897),  69  Vt.  440, 
38  Atl.  R.  87,  defendants  were  whole- 
sale grocers,  under  contract  with  the 
manufacturers  of  certain  goods  not 
to  sell  below  list  prices.  They  em- 
ployed a  traveling  salesman  to  sell 
these  goods,  and  he  was  authorized 
to  sell  only  at  list  prices,  to  make  col- 
lections and  receipt  bills.  A  retailer, 
who  knew  of  the  contract,  bought 
goods  from  the  salesman,  who  al- 
lowed him  discounts,  though  the 
goods  were  sold  and  bills  rendered 


164 


CH.  III.]  CAPACITY    OF    PARTIES.  [§  1T6. 

Authority  to  sell  upon  a  day  named  does  not  justify  a  sale 
at  a  later  day;1  and  authority  to  sell  upon  a  particular  occa- 
sion does  not  warrant  the  inference  of  like  authority  several 
years  later.2 

Authority  to  sell  raises  no  implication  of  authority  to  subse- 
quently alter  or  modify  the  contract,  rescind  the  sale,  or  dis- 
charge the  purchaser  from  his  liability;3  or  to  release  or  com- 
promise debts  due  the  principal,  or  to  turn  out  the  property  in 
payment  of  his  debts.4 

Like  other  authorities,  the  authority  to  sell  is  usually  not  one 
which  the  agent  may  delegate  to  another  without  his  principal's 
consent.5 

Where  the  authority  is  simply  to  solicit  orders  for  goods,  or 
negotiate  for  their  sale,  the  agent  would  have  no  implied  power 
to  make  an  absolute  contract  of  sale;6  but  even  though,  in  fact, 
his  authority  is  so  limited,  if  the  principal  holds  him  out  as 
having  general  authority  to  sell,  the  principal  will  be  liable  to 
innocent  third  persons  who  have  made  an  absolute  contract 
with  the  agent  in  reliance  upon  his  apparent  authority.7 

§  176.  Implied  authority  to  sell. —  Although  not  expressly 
conferred,  authority  to  sell  may  be  implied  from  words  or  con- 

at  list  prices.   Held,  that  the  retailer  adopting  and  enforcing  the  contract 

was    bound    to    inquire  as    to    the  ratifies  that  agreement,  which  thus 

agent's  authority  to  make  discounts,  formed  a  part  of  it.      Babcock  v. 

i  Bliss   v.   Clark    (1860),   16    Gray  Deford  (1875),  14  Kan.  408. 
(Mass.),  60.  4Mechem  on  Agency,  §  355;  Smith 

2  Reed  v.  Baggott  (1879),  5  111.  App.  v.  Perry  (1860),  29  N.  J.  L.  74;  Powell 
257.  v.  Henry  (1855),  27 .Ala.  612;  Nash  v. 

3  Mechem  on  Agency,  §  360 ;  Diversy  Drew  (1850),  5  Cush.  (Mass.)  422. 

v.  Kellogg  (1867),  44  111.  114,  92  Am.  5  Mechem  on  Agency,  §  185  et  seq.; 

Dec.  154;  Stilwell  v.  Mutual  Life  Ins.  Bancroft  v.  Scribner  (1896),  44  U.  S. 

Co.  (1878),  72  N.  Y.  385;   Adrian  v.  App.  480,21  C.  C.  A.  352;  Burke  v. 

Lane  (1879),  13  S.  C.  183;  Adams  v.  Fry  (1895),  44  Neb.  223,  62  N.  W.  R. 

Fraser  (1897),  49  U.  S.  App.  481,  27  476;  National  Cash  Register  Co.  v. 

C.  C.  A.  108.  Ison  (1894),  94  Ga.  463,  21  S.  E.  R.  228. 

Such  authority  may,  of  course,  be  6  Johnson  Railroad  Signal  Co.  v. 

conferred,  expressly  or  by  implica-  Union  Signal  Co.  (1892),  51  Fed.  R.  85. 

tion;  and  where  the  agent  in  selling  7  Banks  v.  Everest  (1886),  35  Kan. 

has  agreed  that  the  buyer  may  re-  687;  Potter  v.  Springfield  Milling  Co. 

turn    the    goods,  the    principal   by  (1898),  75  Miss.  532,  23  S.  R.  259. 

165 


§§  177,  178.]  LAW    OF    SALE.  [BOOK   I. 

duct  which  would  reasonably  lead  to  the  inference  that  such 
authority  existed. 

§  177.  None  implied  from  mere  possession.— Author- 
ity to  sell,  however,  is  not  to  be  implied  from  the  mere  posses- 
sion of  the  goods.  As  has  been  already  seen,  there  must  be 
something  more  —  some  additional  fact  or  circumstance  which 
has  clothed  the  possessor  with  the  indicia  of  ownership  or 
with  apparent  authority  to  sell.1 

§  178.  None  from  mere  relationship  —  Husband  and 

wife  —  Parent  and  child.— So  no  authority  to  sell  is  ordina- 
rily to  be  implied  from  the  mere  relationship  of  the  parties. 
Thus  the  wife,  merely  because  she  is  the  wife,  has  no  implied 
power  to  sell  or  dispose  of  her  husband's  property.2  The  mere 
fact  that  the  husband  is  ill,3  or  temporarily  absent,4  does  not  en- 
large her  powers,  though  long-continued  absence,  and  a  fortiori 
an  entire  abandonment,  would,  of  necessity,  in  respect  of  many 
articles  of  personalty,  warrant  the  wife  to  sell.5  Authority 
to  sell  may,  of  course,  be  inferred  from  conduct,  prior  recog- 
nition, subsequent  ratification,  and  the  like,  as  in  the  case  of 
other  agents. 

So  the  husband,  merely  because  he  is  the  husband,  has  no 
implied  authority  to  sell  or  dispose  of  the  wife's  property.  She 
may  make  him  her  agent,  as  in  the  case  of  other  agents,  but 
he  is  not  her  agent  simply  because  he  is  her  husband.6 

The  same  rules  apply  also  to  the  relation  of  parent  and  child. 

1  See  this  subject  discussed,  ante,  3  x\lexander  v.  Miller,  supra. 

§%  156,  157.  4  Benjamin  v.  Benjamin  (1843),  15 

2Mechem  on  Agency,  §  62;  Alex-  Conn.  347,  39  Am.  Dec.  384;  Krebs  v. 

ander  v.  Miller  (1851).  16  Pa.  St.  215;  O'Grady  (1853),  23  Ala.  726,  58  Am. 

Brown  v.  Railroad  Co.  (1863),  33  Mo.  Dec.  312;  Butts  v.  Newton  (1872),  29 

309;    Dunnahoe   v.  Williams  (18G6),  Wis.  632. 

24  Ark.  264;  Wheeler  &  Wilson  Mfg.  5See  Felker  v.  Emerson  (1844),  16 

Co.  v.  Morgan  (1883),  29  Kan.  519;  Vt.  653,  42  Am.  Dec.  532;  Church  v. 

Ness  v.   Singer  Mfg.   Co.    (1897),  68  Landers  (1833),  10  Wend.  (N.  Y.)  79. 

Minn.  237, 70  N.  W.  R.  1126.    Wife  has  6  See  Mechem  on  Agency,  §  63,  and 

no  implied  power  to  lend  the  hus-  cases  cited, 
band's    property.     Green    v.  Sperry 
(1844),  16  Vt.  390,  42  Am.  Dec.  519. 

163 


CH.  III.]  CAPACITY    OF    PARTIES.  [§§  179-181. 

The  child,  simply  because  he  is  such,  has  no  implied  power  to 
sell  the  parent's  property;  and  the  parent,  by  virtue  of  his  re- 
lationship alone,  would  have  no  implied  power  to  sell  the  prop- 
erty of  the  child. 

A  fortiori,  the  mere  fact  that  one  is  nephew  of  another  and 
works  upon  his  farm  gives  him  no  right  to  sell  that  other's 
property.1 

§  179.  None  from  authority  to  do  different  kind  of 

acts. —  Authority  to  sell,  moreover,  cannot  be  inferred  from 
the  mere  fact  that  the  person  selling  has  even  express  author- 
ity to  do  acts  of  some  other  nature.  Thus,  an  agent  authorized 
to  manage  a  business  has  therefrom  no  implied  power  to  sell 
it;2  and  an  agent  authorized  to  solicit  orders  for  goods  by  ref- 
erence to  samples  which  he  carries  with  him  has  no  implied 
power  to  sell  the  samples.3 

2.  Authority  to  Buy  Personal  Property. 

§  180.  How  considered. —  In  this  case,  also,  it  will  be  con- 
venient to  apply  the  distinction  mentioned  in  a  preceding  sec- 
tion, and  consider,  first,  the  authority  conferred  by  law ;  and 
second,  the  authority  conferred,  expressly  or  impliedly,  by  act 
of  parties. 

a.  Authority  to  Buy  Conferred  by  Law. 

§  181.  Chief  instances. —  There  are  a  few  cases  in  which  the 
law,  by  reason  of  the  necessity  of  the  case,  confers  upon  one 
party  the  power  to  bind  another,  with  whom  he  is  in  some  way 
legally  related,  for  the  purchase  of  goods,  even  without  the  ex- 
press consent  and  often  notwithstanding  the  express  dissent  of 
the  person  to  be  bound.  The  most  striking  illustration  of  this 
authority  is  the  power  of  the  wife,  under  certain  circumstances, 

i  Moffet  v.  Moffet  (1894),  90  Iowa,  Carey  Lumber  Co.  v.  Cain  (1893),  70 
442,  57  N.  W.  R.  954.  Miss.  628,  13  S.  R.  239. 

2  Holbrook    v.    Oberne    (1881),    56        3  Kohn  v.  Washer  (1885),   64  Tex. 
Iowa,  324;  Vescelius  v.  Martin  (1888),     131,  53  Am.  R.  745. 
11  Colo.  391,  18  Pac.  R.  338.    But  see 

167 


§§182,  183.]  LAW    OF    SALE.  [BOOK    I. 

to  pledge  her  husband's  credit  for  necessaries.  Allied  to  this, 
there  has  often  been  said  to  be,  though  probably  erroneously, 
a  similar  power  on  the  part  of  an  infant  child  to  pledge  his 
father's  credit.  And  compared  to  it,  too,  but  probably  also  erro- 
neously, is  the  power  of  the  master  of  a  ship  to  buy  supplies 
upon  the  owner's  credit. 

§  182.  Authority  of  wife  to  buy  necessaries  on  husband's 
credit. —  A  wife,  merely  because  she  is  such,  has  no  general 
authority  as  her  husband's  agent;  though  he  may  make  her  his 
agent  as  in  other  cases.  But  while  she  has  no  general  power 
to  bind  him,  the  law,  in  one  class  of  cases,  gives  her  a  special 
and  unusual  power,  fitly  designated  as  an  "  authority  by  neces- 
sity," to  pledge  her  husband's  credit,  under  certain  circum- 
stances, for  those  articles  which  the  law  has  denominated 
"  necessaries."  His  liability  for  necessaries  has  grown  to  be  an 
important  and  extensive  chapter  of  the  law,  and  many  pages 
would  be  required  to  adequately  discuss  it.  The  purpose  here 
is  simply  to  show  its  place  in  the  general  subject  under  discus- 
sion, and  to  notice  only  its  most  important  features. 

§  183.  Where  the  parties  are  living  together.— While 

the  husband  and  wife  are  living  together,  the  wife  has  usually 
a  sort  of  agency  in  fact  to  manage  the  domestic  affairs,  and  to 
pledge  her  husband's  credit  for  the  purchase  of  such  articles  as 
are  reasonably  necessary  and  proper  for  family  use,  even  though 
they  might  not  all  be  strictly  of  the  class  known  as  necessaries.1 
This  presumptive  agency,  however,  is  not  an  absolute  one.  The 
husband  may,  in  general,  supply  his  family  as  he  pleases  and 
keep  the  control  of  the  purchases  within  his  own  hands.  He 
may  show,  therefore,  that  he  has  never  given  the  wife  this  ap- 
parent authority,  or  that,  if  she  ever  had  it,  it  has  been  revoked 
upon  proper  notice.    As  stated  in  one  case,2  "  the  agency  of  the 

i  Vusler  v.  Cox  (1891),  53  N.  J.  L.  21  Atl.  R.  834,  23  Am.  St.  R.  764  See 
516;  Baker  v.  Carter,  jyost;  Phillips  also  Flynn  v.  Messenger  (1881),  28 
v.  Sanchez  (1895),  35  Fla.  187;  Wagner  Minn.  208,  41  Am.  R.  279;  Bergh  v. 
v.  Nagel  (1885),  33  Minn.  348.  Warner  (1891),  47  Minn.  250,  50  N.  W. 

2  Baker  v.  Carter  (1890),  83  Me.  132,    R.  77,  28  Am.  St.  R  362. 

168 


CH.  III.]  CAPACITY   OF    PARTIES.  [§  184. 

wife  to  purchase  necessaries  is  only  presumptive,  and  may  be 
disproved  by  the  husband  by  showing  that  he  had  abundantly 
supplied  the  house  with  all  things  necessary  and  suitable,  or 
that  he  had  furnished  the  wife  with  ample  ready  money  for  the 
purpose,  and  requested  her  not  to  purchase  on  credit,  or  had 
provided  suitable  places  where  all  things  necessary  could  be 
had  and  forbidden  her  to  purchase  elsewhere;  though  the  mere 
fact  that  he  privately  forbade  her  to  act  for  him  will  not  relieve 
him  from  liability,  where  it  appears  that  he  has  recognized  her 
agency,  or  has  in  some  way  allowed  her  to  appear  to  have 
charge  of  his  house.  The  husband,  in  the  view  of  the  law,  is 
the  head  of  the  house,  and  has  a  right  to  control  the  affairs  of 
his  own  household." 

If,  however,  he  made  no  provision  for  her  in  any  way,  then 
the  wife  would  have  the  power  to  buy  necessaries  upon  his 
credit,  and  he  could  not  by  any  notice  or  countermand  deprive 
her  of  the  power.1 

§  184,  Where  the  parties  are  living  apart, —  Where 

the  husband  and  wife  are  living  apart,  somewhat  different  con- 
siderations apply. 

If  they  are  living  apart  because  of  the  wife's  misconduct  or 
default,  the  husband  is  ordinarily  freed  from  the  liability  to 
support  her.2 

If  they  are  living  apart  because  of  the  husband's  fault,  as 
where  he  has  deserted  her,  driven  her  away,  or  rendered  her 
home  an  unfit  place  for  her  to  live,  he  is  usually  said  to  send 
his  credit  with  her,  and,  if  she  is  not  otherwise  supplied,3  she 
may  buy  necessaries  upon  her  husband's  credit,  and  of  this 
right  no  notice  not  to  supply  her  can  deprive  her.4 

i  Keller  v.  Phillips  (1868),  39  N.  Y.  3If  the  wife  has  other  adequate 

351 ;  "Woodward  v.  Barnes  (1871),  43  means,  the  rule  is  said  not  to  apply. 

Vt.  330;  McGrath  v.  Donnelly  (1889),  Hunt  v.  Hayes  (1891),  64  Vt,  89,  23 

131  Pa.  St.  549.  Atl.  R.  920,  33  Am.  St.  R.  917. 

2  Oinson  v.  Heritage  (1873),  45  Ind.  4  Carstens  v.  Hanselman  (1886),  61 

73,  15  Am.  R.  258;  Brown  v.  Mudgett  Mich.  426,  28  N.  W.  R.  159.  1  Am.  St. 

(1868).  40  Vt.68:  Sturtevant  v.Starin  R.  606';  Billing  v.  Pilcher  (1847),  7 

(1865),  19  Wis.  285.  B.  Mon.  (Ky.)  458,  46  Am.  Dec.  523; 

169 


§  185.]  LAW    OF    SALE.  [BOOK    I. 

If  they  are  living  apart  by  consent,  the  husband  is  still  under 
obligation  to  support  his  wife,  and  if  in  fact  he  does  sufficiently 
supply  her,  he  cannot  be  further  bound;  if  he  does  not  so  sup- 
ply her,  she  may  pledge  his  credit,  except  where  he  has  made 
an  allowance  agreed  upon,  which,  though  insufficient,  was  still 
the  consideration  upon  which  he  gave  his  consent  to  the  sep- 
arate maintenance.1 

Whoever  supplies  goods  to  the  wife  as  necessaries,  however, 
in  the  cases  herein  being  considered,  must  be  prepared  to  show 
that  the  husband  had  not  supplied  the  wife  and  that  the  other 
circumstances  exist  which  impose  upon  him  the  liability.2 

§  185.  What  constitute  necessaries. —  The  term  "nec- 
essaries "  is  not  one  having  a  precise  legal  import.  It  includes 
the  various  articles  and' services  which  are  reasonably  essen- 
tial to  the  health  and  comfort  of  the  wife,  having  regard  to 
the  means  of  the  husband,  the  station  in  life,  and  the  style  of 
living  to  which  the  parties  are  accustomed.  Food,  drink,  cloth- 
ing lodo-incr,  fuel,  washing,  medical,  surgical  and  dental  serv- 
ice  or  attendance3  would  probably  everywhere  be  deemed 
necessaries ;  and  so  might  domestic  service  under  many  circum- 
stances,4 and  counsel  fees  where  the  services  of  counsel  become 
necessary  for  the  support  or  protection  of  the  wife.5 

But  money  borrowed  to  procure  necessaries  would  not,  at 

Mitchell  v.  Treanor  (1852),  11  Ga.  324,  111.  414;    Blowers    v.   Sturtevant,   4 

56  Am.  Dec.  421;  Reynolds  v.  Sweet-  Denio,  46;  Breinig  v.  Meitzler,  23  Pa. 

zer  (1860),  15  Gray  (Mass.),  78;  Hultz  St.  156;  Gill  v.  Read,  5  R.  I.  343;  Ben- 

v.  Gibbs  (1870),  66  Pa.  St.  360.  nett  v.  OTallon,  2  Mo.  69]. 

iSee    Alley   v.   Winn    (1883),    134  3  Medical    services:      Mayhew    v. 

Mass.  77,  45  Am.  R.  297;  Crittenden  Thayer  (1857),   8   Gray  (Mass.),    172. 

v.  Schermerhorn  (1878),  39  Mich.  661,  Dental  services  would  seem  to  stand 

33  Am.  R.  440.  upon  the  same  reasons.     See  Gil  man 

2  The  party  supplying  the  wife  v.  Andrus  (1856),  28  Vt.  241;  Free- 
living  apart  does  so  at  his  peril,  and  man  v.  Holmes  (1879),  62  Ga.  556. 
he  must  be  prepared  to  show  the  4  See  Phillips  v.  Sanchez  (1895),  35 
facts  that  make  the  husband  liable.  Fla.  187,  17  S.  R.  363;  Wagner  v. 
Hare  v.  Gibson  (1876),  32  Ohio  St.  Nagel  (1885),  33  Minn.  348. 
33,  30  Am.  R.  568  [citing  Cartwright  5  See  Wilson  v.  Ford  (1868),  L.  R.  3 
v.  Bate,  1  Allen,  514 ;  Rea  v.  Durkee,  25  Ex.  63. 

170 


CH.   III.]  CAPACITY    OF    PARTIES.  [§   1S6. 

common  law,  be  regarded  as  a  necessary,  even  though  actually 
used  to  buy  necessaries.1 

§  186.  Authority  of  infant  child  to  buy  necessaries  on  par- 
ent's credit. —  The  power  of  an  infant  child  to  buy  necessa- 
ries upon  his  parent's  credit  presents  somewhat  different  con- 
siderations. The  parent  is  doubtless  under  something  of  a 
moral  obligation  to  support  his  minor  children ;  and  statutes 
in  many  States  impose  a  legal  liability  under  many  circum- 
stances. But  whether,  in  the  absence  of  a  statute,  there  is 
such  a  legal  obligation  that  it  may  be  made  the  basis  of  an  ac- 
tion by  one  who  has  supplied  the  minor  child  with  necessaries, 
is  in  dispute.  Mr.  Schouler,  for  example,  concludes  that  there 
is  no  such  legal  liability,  and  that  "  either  an  express  promise, 
or  circumstances  from  which  a  promise  by  the  father  can  be 
inferred,  is  essential."  2  In  a  late  case  in  Iowa,3  on  the  other 
hand,  the  legal  obligation  was  recognized  and  enforced. 

If  the  child  resides  at  home,  it  is  to  be  presumed  that  the 
father  furnishes  whatever  is  necessary  and  proper  for  his  main- 
tenance;4  but  where  the  child  is  absolutely  not  supplied,  though 
at  home,  or  is  driven  from  home,  or  is  temporarily  away  by 
his  parent's  authority  and  is  unsupplied,  the  liability  arises,  if 
at  all.  If,  on  the  other  hand,  the  child  has  voluntarily  aban- 
doned his  home  where  the  parent  is  ready  to  supply  him,5  or 
is  emancipated,6  the  liability  does  not  exist. 

i  Skinner  v.  Tirrell  (1893),  159  Mass.  v.    Barrett   (1871),  4  Oreg.  171:   Mo 

471.  34  N.  E.  R.  692,  38  Am.  St.  R.  447,  Millen  v.  Lee  (1875),  78  III  443;  Owen 

21  L.  R.  A.  673.  v.  White  (1837),  5  Port.  (Ala.)  435,  30 

2  Schouler  on  Domestic  Relations  Am.   Dec.   572;    Bazeley    v.    Forder 

(5th  ed.),  §  241.  (1868),  L.  R.  3  Q.  B.  559,  per  Cock- 

s  Porter  v.  Powell  (1890),  79  Iowa,  burn,  C.  J. 
151,  44  N.  W.  R.  295,  18  Am.  St.  R.  Whether  the  moral  obligation  will 
353,  7  L.  R.  A.  176.  See  also  Cooper  supply  consideration  for  a  promise 
v.  McNamara  (1894),  92  Iowa,  243,  60  to  pay:  Pro,  Jordan  v.  Wright  (1885), 
N.  W.  R.  522;  Dawson  v.  Dawson,  12  45  Ark.  237:  con,  Freeman  v.  Robin- 
Iowa,  513.     Contra,  Kelley  v.  Davis  son,  supra. 

(1870),  49  N.  H.   187,  6  Am.  R.  499;        *  See  Schouler,  Dom.  Rel.,  §  241. 
Farmington  v.  Jones  (1858),  36  N.  H.        5  See  Schouler,  Dom.  Rel.,  §  241; 

271;  Gordon  v.   Potter  (1845),  17  Vt.  Owen  v.  White  (1837),  5  Port.  (Ala.) 

348;  Freeman  v.  Robinson  (1876),  38  435,  30  Am.  Dec.  572. 
N.  J.  L.  383,  20  Am.  R.  399;  Carney        "Schouler,  Dom.  Rel.,  §  268,  citing 

171 


§   1ST.]  LAW    OF   SALE.  [BOOK   I. 

Even  though  there  be  no  legal  liability,  except  upon  an  ex- 
press promise  or  circumstances  from  which  a  promise  can  be 
inferred,  the  law  is  very  liberal  in  construing  the  acts,  the  ac- 
quiescence, the  failure  to  dissent,  of  the  parent  into  an  implied 
promise  to  respond.1 

h.  Authority  to  Buy  Conferred  by  Act  of  Party. 

§  187.  Express  authority  to  buy.— The  authority  to  buy, 
like  the  authority  to  sell  already  considered,  may  be  conferred 
expressly  and  previously,  or  result  from  subsequent  ratification ; 
and  the  same  general  principles  will  apply  to  its  construction. 
If  the  agent  has  a  general  power  to  buy,  without  restrictions, 
he  may  do  all  of  those  incidental  things  which  usually  accom- 
pany a  purchase;  as,  for  example,  to  agree  upon  the  price  and 
terms  of  sale,  the  time  and  method  of  delivery,  and  the  like.2 

He  may,  however,  be  lawfully  limited  by  his  principal  with 
respect  to  quantity,3  quality,  kind  or  price,4  or  even  as  to  the 
persons  with  whom  he  shall  deal.5  And,  unless  these  limita- 
tions are  intended  to  be  secret,  third  persons,  in  their  dealings 
with  him,  must  observe  them.  He  may,  ordinarily,  not  buy 
on  credit,6  unless  his  principal  has  failed  to  supply  with  him 
the  necessary  funds.7 

Nightingale  v.  Withington,  15  Mass.  quantity  of  cotton  at  certain  places 

272;    Corey  v.   Corey,   19  Pick.   29;  and  from  named  parties  at  a  stated 

Hollingsworth    v.    Swedenborg,    49  price.    The  agent  could  not  fill  the 

Ind.  378;  Varney  v.  Young,  11  Vt.  order  at  the  places  named  and  bought 

258;  Johnson  v.  Gibson,  4  E.  D.  Smith,  elsewhere,  from  the  plaintiffs.     The 

231.  defendants  repudiated  the  purchase, 

i  Schouler,  Dom.  Rel.,  §  241.  Held,  that  authority  given  to  a  com- 

2  See  Mechem  on  Agency,  §  365.  mission  merchant  to  buy  goods  at  a 

3  Mechem  on  Agency,  §  366.  certain  place  and  from  certain  parties 
*  Mechem  on  Agency,  §  367.  did  not  authorize  the  purchase  at 
5  Mechem  on  Agency,  §  368.  other  places  and  from  other  parties. 
In    Robinson    Mercantile    Co.    v.  e  Mechem  on  Agency,  §  363. 

Thompson  (1897),  74  Miss.  847, 21  S.  R.  In  Liddell  v.  Sahline  (1891),  55  Ark. 

794,  it  appeared  that  defendants  tele-  627,  17  S.  W.  R.  705,  appellants  were 

graphed  a  cotton  buyer,  who  was  not  stockholders  in  a  co-operative  com- 

their  regular  agent,  to  buy  a  certain  pany    which    employed    a    general 

'  Mechem  on  Agency,  §  304. 

179 

1  i  -j 


CH.  III.] 


CAPACITY    OF   PARTIES. 


[§  188. 


Like  the  agent  authorized  to  sell,  the  agent  authorized  to  buy 
will  not  be  permitted,  without  the  full  knowledge  and  consent 
of  his  principal,  to  buy  of  himself,  either  directly  or  indirectly ; 
or  otherwise  exercise  his  authority  on  his  own  account.  Any 
such  transaction  is  voidable  at  the  option  of  the  principal.1 

Such  an  agent  also  is,  in  general,  not  permitted  to  delegate 
his  authority.2 

§  188.  Implied  authority  to  buy.  —  But  authority  to  buy 
may,  in  many  cases,  be  implied,  though  it  has  not  been  expressly 
conferred.  It  may,  for  example,  be  found  to  be  a  suitable  and 
necessary  incident  to  some  other  power  which  was  expressly 
given ;  as,  for  example,  where  one  who  has  been  given  general 
authority  to  manage  a  business  in  which  the  use  of  teams  was 
necessary,  was  held  authorized  to  buy  a  team  for  that  purpose.3 


manager  with  power  to  buy  and  sell 
goods  in  accordance  with  certain 
provisions,  which  included  a  limita- 
tion upon  purchases  on  credit.  The 
manager  bought  on  credit  beyond 
the  limit  imposed.  Held,  that  though 
a  general  agent  has  no  power  to  buy 
on  credit,  yet  if  goods  are  delivered 
by  plaintiffs  without  knowledge  of 
the  limitations,  they  are  not  bound 
by  them. 

In  Welch  v.  Clifton  Mfg.  Co.  (1899), 
55  S.  C.  568,  33  S.  E.  R  739,  an  agent 
for  the  purchase  of  cotton  bought  on 
credit.  It  was  claimed  he  had  no 
authority.  Held,  that  the  manner  in 
which  he  had  conducted  his  princi- 
pal's business  for  a  long  time  could 
be  shown  to  determine  the  scope  of 
his  authority;  and  that  the  retention 
of  the  goods  by  the  principal  after 
notice  that  they  were  bought  on 
credit  was  a  ratification. 

In  Littleton  v.  Loan,  etc.  Ass'n 
(1895),  97  Ga.  172,  25  S.  E.  R  826,  the 
defendants  had  an  agent  in  another 
town  whose  business  it  was  to  buy 
and  ship  cotton  to  them.     His  au- 


thority to  bind  his  principals  was 
limited  to  drawing  drafts  upon  them 
in  favor  of  a  specified  bank,  with 
bills  of  lading  attached  to  the  drafts, 
which  the  bank,  by  arrangement 
with  the  principals,  cashed  so  as  to 
supply  the  agent  with  money  to  pay 
for  his  purchases.  The  manager  of 
the  plaintiff  corporation,  knowing 
the  extent  of  the  authority  possessed 
by  defendant's  agent,  sold  him  cotton 
and  took  in  payment  the  agent's  in- 
dividual check  on  the  bank,  which 
was  dishonored.  Held,  that  the 
plaintiff  cannot  recover  from  the 
principal  without  showing  that  he 
actually  received  the  goods,  and  not 
even  then  if  the  principal  had  paid 
the  agent  by  honoring  the  agent's 
draft. 

1Mechem  on  Agency,  §  462;  Dis- 
brow  v.  Secor  (1889),  58  Conn.  35,  18 
AtL  R.  981. 

2  Mechem  on  Agency,  §  185  et  seq. 

3  See  Montgomery  Furniture  Co.  v. 
Hardaway  (1893),  104  Ala.  100,  16  S. 
R.  29. 

In  Heald  v.  Hendy  (1891),  89  Cal. 


173 


§  189.]  LAW    OF    SALE.  [BOOK    I. 

It  may  be  inferred  also  where  it  has  been  openly  and  notori- 
ously exercised  without  the  objection  or  with  the  acquiescence 
of  the  principal.1  Liability  for  purchases  may  also  be  incurred 
by  one  who  has  either  actively  or  passively  caused  or  permitted 
himself  to  be  held  out  as  the  principal,2  and  if  he  were  really 
principal,  he  may  be  liable,  though  he  was  not  known  as  such.3 
Authority  to  buy  in  these  cases  is,  of  course,  not  an  unlim- 
ited one;  the  goods  must  be  suitable  to  the  business  as  appar- 
ently conducted,4  and  there  must  be  nothing  so  unreasonable  in 
quantity  or  terms  as  to  properly  put  a  prudent  man  upon  his 
guard. 

g  189. Not  implied  from  mere  relationship  of  parties. 

But  authority  to  buy  is  not  ordinarily  to  be  inferred  from  the 
mere  relationship  of  the  parties.  Thus,  not  speaking  now  of 
the  law's  authority  to  buy  necessaries,5  a  wife  has  no  implied 
power  to  buy  goods  generally  upon  her  husband's  credit,6  nor 
has  the  husband  power,  simply  because  he  is  husband,  to  buy 
goods  for  the  wife,  or  make  improvements  to  her  property  upon 
her  credit.7  Either  may  make  the  other  an  agent,  and  it  may 
be  done  by  implication  from  acts,  as  in  other  cases,  but  no  gen- 
eral authority  arises  merely  from  the  relationship. 

The  same  rules  apply  also  in  the  case  of  parent  and  child.8 

632,  27  Pac.  R.  67,  the  superintendent  124  Pa.  St.  291,  10  Am.  St.  R.  585,  2 

of  a  mine  agreed  with  third  persons  L.  R.  A.  823;  Watteau  v.  Fen  wick, 

that  the  defendants,  the  owners  of  [1893]  1  Q.  B.  Div.  346;  Simpson  v. 

the  mine,  would  pay  for  provisions  Patapsco  Guano  Co.  (1896),  99  Ga.  168, 

furnished     to     the    boarding-house  25  S.  E.  R.  94;  Steele-Smith  Grocery 

where  the    miners   boarded.     Held,  Co.  v.  Potthast  (1899),  —  Iowa,  — , 

that  where  it  is  necessary  to  the  op-  80  N.  W.  R.  517.     But  see  Becherer  v. 

eration  of  a  mine  that  provisions  be  Asher  (1896),  23  Ont.  App.  202. 

furnished  to  a  boarding-house  where  4  See  Wallis  Tobacco  Co.  v.  Jackson 

the  miners  live,  the  superintendent  (1892),  99  Ala.  460,  13  S.  R.  120. 

has  power  to  bind  the  mine  operators  5  Already  considered,  ante,  §§  182- 

for  such  necessary  supplies.  185. 

i  See  Hirschmann  v.  Iron  Range  6  See  Mechem  on  Agency,  §  62,  and 

R.  R  Co.  (1893),  97  Mich.  384,  56  N.  W.  cases  cited. 

r#  842.  7  See  Mechem  on  Agency,  §  63,  and 

2  See  Feldman   v.  Shea   (1899),  —  cases  cited. 

Idaho,  — ,  59  Pac.  R.  537.  8  See  Johnson  v.  Stone,  40  N.  H. 

» See  Hubburd  v.  Tenbrook  (1889),  197,  77  Am.  Dec.  706;  Bennett  v.  Gil- 

174 


CH.  III.]  CAPACITY    OF   PAKTIES.  [§§  190,  191. 

V. 

Sales  by  Persons  Acting-  in  an  Official  Capacity. 

§  190.  In  general.—  Something  ought  also  to  be  said,  per- 
haps, concerning  sales  and  purchases  by  persons  acting  in  an 
official  or  ^wa^'-official  capacity  and  by  authority  of  law,  rather 
than  in  a  private  representative  capacity  and  by  authority  of  the 
person  represented.  The  full  treatment  of  such  cases  belongs,  of 
course,  to  other  treatises,  but  a  few  points  may  not  be  without 
significance  here. 

§  191.  Authority  must  be  strictly  construed. —  It  may,  in 
the  first  place,  appropriately  be  noticed  that  these  official  per- 
sons derive  their  authority  from  the  law,  which  is  supposed 
always  to  be  open  for  investigation,  and  with  the  terms  of 
which  every  person  who  deals  with  the  officer  is  presumed  to 
be  familiar.1  Express  grants  of  power,  moreover,  are  usually 
subjected  to  a  strict  construction  and  will  be  deemed  to  confer 
those  powers  only  which  are  either  expressly  given  or  neces- 
sarily implied.2  -The  fact  that  the  same  act,  if  done  by  a  pri- 
vate agent,  would  have  been  binding  upon  his  principal,  is  not 
conclusive  of  its  validity  against  the  public;,  for  in  the  case  of 
the  private  agent  the  full  extent  of  the  authority  and  limita- 
tions upon  it  may  be  known  to  the  principal  and  agent  alone, 
while  in  the  case  of  the  public  agent  his  authority  and  its  lim- 
itations are  matters  of  public  record  with  which  every  one  may 
make  himself  acquainted.3 

lette,  3  Minn.  423,  74  Am.  Dec.  774;  Moines,  19  Iowa.  199,  87  Am.  Dec. 

Sequin  v.  Peterson,  45  Vt,  255, 12  Am.  423;  Wallace  v.  Mayor,  29  Cal.  181; 

R  194;   Hall  v.  Harper,  17  111.  82;  Sutro  v.  Pettit,  74  Cal.  332,  5  Am.  St. 

Swartwout    v.   Evans,    37    111.    442;  R.  442;  Day  Land  &  Cattle  Co.  v. 

Burnham  v.  Holt,  14  N.  H.  367.  State,  68  Tex.  526;  Tamm  v.  Lavalle, 

i  Mechem  on  Public  Officers,  §  506,  92  111.  263. 
citing  Mayor  of  Baltimore  v.  Esch-        -Mechem  on  Public  Officers,  §§  511, 

bach,  18  Md.  282;  Mayor  of  Baltimore  830;  Green  v.  Beeson,  31  Ind.  7;  Vose 

v.  Reynolds,  20  Md.  1,  83  Am.  Dec.  v.  Deane,  7  Mass.  280;  The  Floyd  Ac- 

535;  State  v.  Hays,  52  Mo.  578;  State  ceptances,  74  U.  S.  (7  Wall.)  666. 
v.  Bank,  45  Mo.  528:  Lee  v.  Munroe,        3  Mechem  on  Public  Officers,  §  512; 

11  U.  S.  (7  Cranch),  366;  Clark  v.  Des  Mechem  on  Agency,  §  292;  Mayor  of 

175 


§§  192-194.]  LAW    OF    SALE.  [BOOK   I. 

If  the  law  requires  particular  formalities,  the  officer,  in  his 
acts,  must  observe  them ; l  if  precedent  conditions  are  prescribed 
they  must  be  complied  with;2  and  generally  the  officer  can 
bind  the  public  only  while  acting  strictly  within  the  scope  of 
his  authority  as  created,  conferred  and  deQned  by  law.3 

§  192.  Officer  must  keep  within  the  term  and  territory  of 
his  office. —  It  is  evident  also  that  the  officer  must  keep  within 
the  territorial  limits  to  which  by  law  his  authority  extends, 
and  that  when  he  goes  beyond  such  limits  his  official  character 
and  his  official  authority  must  be  left  behind.4  It  will  likewise 
be  evident  that  his  authority  must  be  limited  in  its  exercise  to 
that  term  or  period  during  which  he  is  by  law  invested  with 
official  character.5 

§  193.  Officer  cannot  deal  with  himself. —  It  is  a  rule  of 
inflexible  application  that  the  public  like  the  private  agent  shall 
not,  without  the  full  and  intelligent  consent  of  his  principal, 
deal  with  himself  on  his  principal's  account,  or  exercise  his 
authority  for  his  own  profit  or  advantage.  Without  such  knowl- 
edge and  consent,  therefore,  an  agent  authorized  to  sell  prop- 
erty for  his  principal  cannot  sell  to  himself;  an  agent  author- 
ized to  buy  for  his  principal  cannot  buy  of  himself;  and  an 
agent  authorized  to  buy  or  sell  for  his  principal  cannot  buy  or 
sell  for  himself.6 

This  rule  applies  in  all  its  force  to  such  public  or  quasi-public 
officers  as  administrators,  executors,  guardians,  sheriffs,  trustees, 
judges  of  probate,  county  treasurers,  and  the  like.7 

§  194.  Purchases  at  execution,  tax  and  other  similar 
sales. —  The  principles  above  referred  to  find  constant  illus- 

Baltimore  v.  Eschbach,  18  Md.  282;  <See  Mechem  on  Public  Officers, 

Mayor  of  Baltimore  v.  Reynolds.  20  §  508. 

Md.  1,83  Am.  Dec.  535;  State  v.Hays,  5See  Mechem  on  Public  Officers, 

52  Mo.  578.  §§  509,  510. 

i  Mechem  on  Public  Officers,  §  831.  6See  Mechem  on  Agency,  §§  454- 

2  Mechem  on  Public  Officers,  §833.  472;    Mechem    on    Public    Officers, 

3  Mechem  on  Public  Officers,  §  834.  §§  839, 840. 

7  Mechem  on  Public  Officers,  §  810. 
176 


CH.  III.]  CAPACITY    OF   PARTIES.  [§    195. 

tration  in  the  case  of  sales  made  upon  execution  and  other  sim- 
ilar writs.  A  sale  made  under  such  a  lien,  it  is  said,1  "  can  ordi- 
narily transfer  no  interest  beyond  that  in  fact  held  by  the 
defendant  when  the  lien  attached,  or  acquired  by  him  subse- 
quently thereto,  and  before  the  sale.  It  is  the  duty  of  the 
purchaser  to  satisfy  himself,  prior  to  the  purchase,  respecting 
the  title  of  the  defendant  and  the  sufficiency  of  the  proceedings 
to  transfer  it,  for  the  maxim  of  caveat  emptor  is  unquestionably 
applicable  both  to  judicial  and  to  execution  sales.  The  title 
acquired  by  a  purchaser,  even  when  the  proceedings  are  valid, 
is  that  only  to  which  he  would  succeed  by  a  conveyance  from 
the  defendant  in  the  writ  made  either  at  the  time  of  the  sale 
where  it  is  nut  supported  by  any  antecedent  lien,  otherwise  at 
the  date  of  the  attaching  of  such  lien.  If  one  not  a  party  to 
the  suit  has  an  interest  in  the  property,  an  execution  sale  will 
not  defeat  it,  though  such  property  was  levied  upon  while  in 
his  possession." 

The  same  rule  applies  to  tax  sales.  "  The  rule  caveat  emptor 
applies  to  the  purchaser.  He  takes  all  the  risks  of  his  pur- 
chase, and  if  he  finds  in  any  case  that  he  has  secured  neither 
the  title  he  bid  for,  nor  any  equitable  claim  against  the  owner, 
the  State  may,  if  it  see  fit,  make  reparation  itself ;  but  it  has  no 
more  authority  to  compel  the  owner  of  the  land  to  do  so  than 
to  exercise  the  like  compulsion  against  any  other  person." 2 

No  guaranty,  moreover,  is  ordinarily  available  by  the  pur- 
chaser; for  neither  the  officer,3  nor  the  public  which  he  repre- 
sents,4 impliedly  warrants  the  validity  of  the  title  which  he 
assumes  to  convey. 

§  195.  Purchases  at  executors',  administrators'  .and 
guardians'  sales. —  Like  general  principles  apply  to  sales  by 
executors  and  administrators  in  many  States.  For  while,  at 
common  law,  the  representative  took  such  title  to  the  personal 
estate  of  the  decedent  that  he  might,  in  many  cases,  transfer 

1  Freeman  on  Executions  (3d  ed.),  3  Cooley  on  Taxation  (2d  ed.),  p.  476, 
§  335.  nota 

2  Cooley  on  Taxation  (2d  ed.),  p.  553.        *  Cooley  on  Taxation  (2d  ed.),  p.  818. 

12  177 


§  196.]  LAW    OF    SALE.  [BOOK    I. 

an  unimpeachable  title  to  a  "bona  fide  purchaser,  even  though 
he  made  himself  liable  to  the  persons  interested  in  the  estate, 
as  for  a  devastavit,  the  power  of  the  representative  in  many 
States  is  now  so  limited  by  statute  that  the  purchaser  must  be- 
ware, and  an  unauthorized  sale  will  transfer  no  title.1 

And  so  in  the  case  of  the  guardian.  "No  doubt  is  enter- 
tained," it  is  said,2  "  of  the  competency  of  a  guardian's  power 
over  the  disposition  of  the  personal  estate,  as  between  him  and 
a  bona  fide  purchaser,  unless  restrained  by  statute.  Although 
the  guardian  is  liable  on  his  bond  for  any  abuse  of  this  power, 
yet  the  vendee  takes  a  good  title  if  he  has  no  notice  of  the 
guardian's  fraud.  »  .  But  many  States  have  enacted  stat- 
utes avoiding  all  sales  of  a  ward's  property  by  the  guardian 
if  made  without  order  of  court,  whether  the  purchaser  have 
knowledge  or  not  that  such  property  belongs  to  a  ward.  In 
such  case,  if  a  guardian  sell  without  authority,  the  sale  is  void- 
able at  the  option  of  the  ward  on  reaching  majority." 

§  196.  Sales  by  trustees.— Doctrines  of  like  general  char- 
acter apply  to  sales  by  trustees.  "  It  is  a  universal  rule,"  it  is 
said,3  u  that  if  a  man  purchases  property  of  a  trustee,  with  no- 
tice of  the  trust,  he  shall  be  charged  with  the  same  trust,  in 
respect  to  the  property,  as  the  trustee  from  whom  he  pur- 
chased. And  even  if  he  pays  a  valuable  consideration,  with 
notice  of  the  equitable  rights  of  a  third  person,  he  shall  hold 
the  property  subject  to  the  equitable  interests  of  such  person. 
Of  course,  a  mere  volunteer,  or  person  who  takes  the  property 
without  paying  a  valuable  consideration,  will  hold  it  charged 
with  all  the  trusts  to  which  it  is  subject,  whether  he  have  notice 
or  not;  for  in  such  case  no  wrong  or  pecuniary  loss  can  fall 
upon  him  in  compelling  him  to  execute  the  trust  to  which  the 
property  that  came  to  him  without  consideration  was  subject." 

"  Of  course,"  it  is  further  said,4  "the  opposite  proposition  is 
also  true,  that  a  purchaser  for  a  valuable  consideration,  with- 

1  See  the  subject  fully  discussed  in  2  Woerner  on  Guardianship,  p.  179. 

Woerner  on  Administration  (2d  eel.),  3  Perry  on  Trusts  (5th  ed.),  §  217. 

§  331.  4  Perry  on  Trusts,  §  218. 

178 


CH.  III.]  CAPACITY    OF    PARTIES.  [§  196. 

out  actual  or  constructive  notice  of  the  trust,  holds  the  prop- 
erty discharged  of  the  interest  of  the  cestui  que  trust."  But 
to  constitute  one  such  a  purchaser,  "  he  must  show  an  actual 
eonveyance,  and  not  merely  an  agreement  for  a  conveyance; 
and  it  must  be  shown  that  the  consideration  named  in  the 
deed  was  paid  in  good  faith;"  while  "notice  must  be  posi- 
tively and  affirmatively  denied,  and  not  evasively  or  inferen- 
tiaily."* 

1  Perry  on  Trusts,  §  219. 
179 


CHAPTEK  IV. 

OF  THE  THING  SOLD  —  WHAT  MAY  BE  BOUGHT  AND  SOLD. 


§  197.  What  may  be  sold. 
#198.  No  present  sale  until  chattel 

ascertained. 
199.  Thing  sold  must  be  in  exist- 
ence. 


§  200,  201.  Things  potentially  in  ex- 
istence. 

202.  Things  not  yet  acquired  by 

vendor. 

203.  Sales  for  future  delivery. 


§  197.  What  may  be  sold. —  Sale  has  been  seen  to  be,  in 
substance,  the  transfer  of  the  absolute  title  to  a  chattel  for  a 
price.  Who  may  sell,  has  already  been  considered.  Attention 
will  now  be  given  to  the  consideration  of  what,  in  general, 
may  be  the  subject-matter  of  a  sale.  The  question  at  present 
will  not  be  what  sales  are  valid  under  particular  circumstances, 
but,  what  things  in  general  may  be  sold.  And  for  this  chap- 
ter, the  subject  will  be  considered  without  reference  to  the  re- 
quirements of  the  statute  of  frauds  —  a  matter  reserved  for  a 
later  chapter.1 

Starting,  then,  with  the  simplest  form,  the  general  rule  may 
be  said  to  be  that  anything  of  value  then  belonging  to  the  seller 
and  actually  or  potentially  in  existence  may  be  made  the  sub- 
ject-matter of  a  sale.  It  is  not  necessary,  it  has  been  said,2 
"  that  the  subject  of  sale  should  have  a  physical  and  corporeal 
existence  and  be  susceptible  of  manual  delivery;  for,  provided 
it  have  an  actual  value,  however  intangible  it  may  be,  it  may 
nevertheless  be  sold.3  Thus,  a  license  to  manufacture  patented 
machines,4  or  a  copyright  to  print  and  sell  a  manuscript,  even 
of  as  incorporeal  a  substance  as  poetry  or  metaphysics,  may  be 
sold."5 

So,  also,  the  good-will  of  a  business,  whether  conducted  by  a 

1  See  post,  §  329  et  seq.  4  Citing  Brooks  v.  Byam  (1843),  2 

2  Story  on  Sale  (4th  ed.),  §  187.  Story,  C.  C.  525,  4  Fed.  Cas.,  p.  261. 

3  Citing  Pothier,  Contrat  de  Vente,  5  Citing  2  Blackstone,  Com.  405-408- 
No.  6.  and  notes. 

180 


€H.  IV.]  OF   THE   THING   SOLD.  [§§  198,  199. 

single  individual !  or  a  partnership;2  the  good- will  of  a  news- 
paper route ; 3  a  trade-mark ; 4  or,  in  some  cases,  a  seat  in  a  stock 
exchange  or  board  of  trade,5  may  be  made  the  subject  of  a  sale. 
As  stated  in  one  case,6  "a  mere  privilege  may  be  the  subject 
of  sale,  if  the  purchaser  is  willing  to  run  the  risk  of  failing  to 
enjoy  it." 

Passing  next  more  fully  into  details,  it  may  be  noticed  that  — 

§  198.  No  present  sale  until  thing  to  be  sold  is  ascer- 
tained.—  In  order  that  there  may  be  a  present  sale,  it  is  the 
first  requisite,  so  far  as  the  subject-matter  of  the  sale  is  con- 
cerned, that  the  thing  sold  shall  be  ascertained  and  agreed  upon 
by  the  parties.  This  rule,  "  that  the  parties  must  be  agreed  as 
to  the  specific  goods  on  which  the  contract  is  to  attach  before 
there  can  be  a  bargain  and  sale,  is  one  that  is  founded  on  the 
very  nature  of  things." 7 

There  may,  of  course,  be  contracts  for  the  sale  of  goods  not 
yet  ascertained,  as  where  the  kind  of  goods  is  described,  or 
manifested  by  sample,  while  the  "  individuality  of  the  thing  to 
be  delivered"  is  left  for  subsequent  determination;  and  many 
important  rules  are  hereafter  to  be  dealt  with  in  connection 
with  such  "  subsequent  appropriation,"  as  it  is  called.8  The 
point  here  to  be  emphasized  is,  that  the  title  to  a  chattel  cannot 
pass  until  the  identity  of  that  chattel  has  been  determined. 

§  199.  Must  be  a  thing  in  existence  to  be  sold. —  It  is 

equally  obvious  that  there  can  be  no  present  sale  where  there 
is  nothing  existing  to  be  sold.  Parties  may  undoubtedly,  as 
will  be  seen  in  a  later  section,  contract  for  the  future  sale  of 
an  article  not  yet  acquired  or  not  yet  in  existence,  but  a  pres- 
ent transfer  of  the  title  to  that  which  is  not,  is  clearly  an  im- 

i  Tweed  v.  Mills  (1865),  L.  R.  1  Com.  Cal.  254;  Hyde  v.  Woods  (1876),  94 

PI.  39.  U.  S.  523,  24  L.  ed.  264;  In  re  Werder 

2  See  Mechem's  Elem.  of  Partner-  (1883),  15  Fed.  R.  789;  Barclay  v. 
ship,  £§  87-89,  and  cases  cited.  Smith  (1883),  107  111.  349,  47  Am.  R. 

3  Hathaway  v.  Bennett  (1854),  10  437;  Thompson  v.  Adams  (1880),  93 
N.  Y.  108,  61  Am.  Dec.  739.  Pa.  St.  55;  Pancoast  v.  Gowen,  id.  66. 

4  Warren  v.  Thread  Co.  (1883),  134  b  Hathaway  v.  Bennett,  supra. 
Mass.  247.  7  Blackburn  on  Sale,  p.  124. 

5  See  Clute  v.  Loveland  (1885),  68  8  See  post,  %%  721-752. 

181 


199.] 


LAW    OF   SALE. 


[book  r. 


possibility.  Hence,  if  at  the  time  of  the  negotiation  the  thing 
contemplated  had,  contrary  to  the  belief  of  the  parties,  never 
had  any  existence,  or  if  it  had,  contrary  to  their  belief,  already 
ceased  to  exist,  there  is  clearly  no  sale.1  This  rule,  as  is  said 
by  Mr.  Benjamin,2  is  "  sometimes  treated  in  the  decisions  as 
dependent  on  an  implied  warranty  by  the  vendor  of  the  exist- 
ence of  the  thing  sold;  sometimes  on  the  want  of  considera- 
tion for  the  purchaser's  agreement  to  pay  the  price.  Another, 
and  perhaps  the  true  ground,  is  rather  that  there  has  been  no 
contract  at  all,  for  the  assent  of  the  parties,  being  founded  on 
a  mutual  mistake  of  fact,  was  really  no  assent;  there  was  no 
subject-matter  for  a  contract,  and  the  contract  was  therefore 
never  completed."  Mr.  Benjamin  cites  also  Pothier,3  who  says : 
"  There  must  be  a  thing  sold,  which  forms  the  subject  of  the 


i  Strickland  v.  Turner,  7  Ex.208; 
Hastie  v.  Couturier,  9  Ex.  102;  Em- 
erson v.  European,  etc.  Ry.  Co.,  67 
Me.  387,  24  Am.  R.  39;  Dexter  v.  Nor- 
ton, 47  N.  Y.  62,  7  Am.  R.  415. 

In  Gibson  v.  Pelkie,  37  Mich.  380, 
where  the  parties  were  dealing  in 
reference  to  a  judgment  which  in 
fact  did  not  exist,  Graves,  J.,  said: 
"There  was  no  subject-matter.  The 
parties  supposed  there  was  a  judg- 
ment, and  negotiated  and  agreed 
on  that  basis,  but  there  was  none. 
Where  they  assumed  there  was 
substance  there  was  no  substance. 
They  made  no  contract,  because  the 
thing  they  supposed  to  exist,  and  the 
existence  of  which  was  indispensa- 
ble to  the  institution  of  the  contract, 
had  no  existence."  Citing  Allen  v. 
Hammond,  11  Pet.  (U.  S.)  63;  Suydam 
v.  Clark,  2  Sandf.  (N.  Y.)  133;  Gove 
v.  Wooster,  Lalor's  SuppL  (N.  Y.)  30; 
Smidt  v.  Tiden,  L.  R.  9  Q.  B.  446; 
Couturier  v.  Hastie,  5  H.  L.  673; 
Hazard  v.  New  England  Ins.  Co.,  1 
Sumn.  (U.  S.  C.  C.)  218;  Silvernail  v. 
Cole,  12  Barb.  (N.  Y.)  685;  Sherman 
•?.  Barnard,  19  Barb.  (N.  Y.)  291. 

2  Benjamin  on  Sales,  §  77. 


3  Contrat  de  Vente,  No.  4. 

In  Bates  v.  Smith,  83  Mich.  347,  47 
N.  W.  R.  249,  Long.  J.,  says:  "It  is 
essential  to  the  validity  of  every  ex- 
ecuted contract  of  sale  that  there 
should  be  a  thing  or  subject-matter 
to  be  contracted  for.  And  if  it  ap- 
pears that  the  subject-matter  of  a 
contract  was  not  and  could  not  have 
been  in  existence  at  the  time  of  such 
contract,  the  contract  itself  is  of  no 
effect,  and  may  be  disregarded  by 
either  party.  Strickland  v.  Turner, 
7  Exch.  208;  Hastie  v.  Couturier,  9 
id.  102,  5  H.  L.  Cas.  673;  Franklin  v. 
Long.  7  Gill  &  J.  (Md.)  407.  A 
mere  possibility  or  contingency,  not 
founded  upon  a  right  or  coupled  with 
an  interest,  cannot  be  a  subject  of  a 
present  sale,  though  it  may  be  of  an 
executory  agreement  to  selL  Purcell 
v.  Mather,  35  Ala.  570;  Low  v.  Pew, 
108  Mass.  347,  11  Am.  R.  357.  Though 
the  subject-matter  of  the  agreement 
has  neither  an  actual  nor  potential 
existence,  such  an  agreement  is  usu- 
ally denominated  an  executory  con- 
tract, and  for  its  violation  the  remedy 
of  the  party  injured  is  by  an  action 
to  recover  the  damages.   Hutchinson 


182 


OH.  IV.]  OF   THE   THING    SOLD.  [§  200. 

contract.  If,  then,  ignorant  of  the  death  of  my  horse,  I  sell  it, 
there  is  no  sale,  for  want  of  a  thing  sold.  For  the  same  reason, 
if,  when  we  are  together  in  Paris,  I  sell  you  my  house  at  Or- 
leans, both  being  ignorant  that  it  has  been  wholly  or  in  great 
part  burnt  down,  the  contract  is  null,  because  the  house,  which 
was  the  subject  of  it,  did  not  exist;  the  site  and  what  is  left  of 
the  house  are  not  the  subject  of  our  bargain,  but  only  the 
remainder  of  it." 

§  200.  Things  potentially  in  existence.—  A  valid  sale,  how- 
ever, may  be  made  of  a  thing  which,  though  not  yet  actually 
in  existence,  is  reasonably  certain  to  come  into  existence  as  the 
natural  increment,  probable  result  or  usual  incident  of  some- 
thing already  in  existence,  and  then  belonging  to  the  vendor, 
and  the  title  will  vest  in  the  buyer  the  moment  the  thing  comes 
into  existence.1  Things  of  this  nature  are  said  to  have  a  potential 
existence.2  "  It  is  frequently  held,"  says  Peters,  J.,3  "  that  a  man 
may  sell  property  of  which  he  is  potentially  but  not  actually 
possessed.  He  may  make  a  valid  sale  of  the  wine  that  a  vine- 
yard is  expected  to  produce;  or  the  grain  a  field  may  grow  in 
a  given  time;  or  the  milk  a  cow  may  yield  during  a  coming 
year;  or  the  wool  that  shall  thereafter  grow  upon  sheep;  or 
what  may  be  taken  at  the  next  cast  of  a  fisherman's  net; 4  or 
fruits  to  grow ;  or  young  animals  not  yet  in  existence ; 5  or  the 

v.  Ford,  9  Bush  (Ky.).  318,  15  Am.  R  4  This  illustration  of  the  next  cast 

711;  Pierce  v.  Emery,  32  N.  H.  484."  of  a  fisherman's  net,  though  a  com- 

But  see  Dickey  v.  Waldo,  97  Mich,  mon  one  (see  Benjamin  on  Sales, 

255,  23  L.  R.  A.  449.  §  84),  is  not  accurate.     Low  v.  Pew, 

1  Low  v.  Pew,  supra;  Emerson  v.  -supra. 

European,  etc.  Ry.  Co.,  67  Me.  387,  24  *  A  contract  that  all  the  colts  to  be 

Am.  R.  39;  Cutting  Packing  Co.  v.  foaled  by  certain  mares  sold  by  A  to 

Packers'  Exchange,  86  Cal.  574.  21  B,  and  kept  in  A's  stables  under  Bs 

Am.  St,  R.  63,  25  Pac.  R  52;  Arques  care,  were  to  belong  to  B,  is  a  valid 

v.  Wasson,  51  Cal.  620,  21  Am.  R  718;  contract  of  sale,   and   not  void  as 

Dickey  v.  Waldo,  supra.  against  creditors  for  want  of  deliv- 

2 "  Things  have  a  potential  exist-  ery.     Hull  v.  Hull,  48  Conn.  250,  40 

ence  which  are  the  natural  product  Am.  R  165.    Plaintiff's  mare  having 

or  expected  increase  of  something  been  served  by  defendant's  stallion, 

already   belonging  to  the  vendor."  plaintiff  executed  a  written  agree- 

Hutchinson  v.  Ford,  supra.  ment  to  pay  defendant  $20  in  twelve 

8  In  Emerson  v.  Railway  Co.,  supra,  months  if  the  mare  proved  with  foal, 

183 


§  200.] 


LAW   OF    SALE. 


[book  I. 


good-will  of  a  trade,  and  the  like.1  The  thing  sold,  however, 
must  be  specific  and  identified;  it  must  be,  for  instance,  the 
product  of  a  particular  vineyard  or  field,  or  the  wool  from  a 
particular  sheep.  These  must  also  be  owned  at  the  time  by 
the  vendor.    A  person  cannot  sell  the  products  of  a  field  which 


"colt  holden  for  payment."  Held, 
that  the  agreement  was  a  mortgage 
of  the  colt.  Sawyer  v.  Gerrish,  70 
Me.  254,  33  Am.  R.  323.  Owner  of  a 
mare  may,  during  gestation,  make  a 
valid  contract  for  sale  of  the  colt. 
McCarty  v.  Blevins,  5  Yerg.  (Tenn.) 
195,  26  Am.  Dec.  262.  A  valid  sale 
may  be  made  of  the  first  female 
colt  which  a  mare,  then  owned  by 
grantor,  may  thereafter  produce. 
Fonville  v.  Casey,  1  Murph.  (N.  C.) 
389,  4  Am.  Dec.  559. 

But  in  Bates  v.  Smith,  83  Mich.  347, 
47  N.  W.  R.  249,  it  was  held  that  a 
contract  by  which  A  was  to  have  a 
half  interest  in  the  colt  to  be  pro- 
duced by  subsequently  breeding  B's 
mare  to  A's  stallion,  conveyed  no 
such  title  to  the  colt  that  it  could 
operate  as  against  C,  who  bought 
the  mare,  while  in  foal,  with  notice 
that  she  had  been  bred  to  A's  stal- 
lion but  without  notice  of  this  con- 
tract. Such  notice  was  not  sufficient 
to  put  C  upon  inquiry  as  to  A's  rights. 

1  Wages  to  be  earned  and  money  to 
become  due  under  an  existing  con- 
tract or  employment  may  be  assigned, 
though  employment  is  for  no  definite 
time,  but  not  if  there  be  no  present 
contract  of  service.  Low  v.  Pew,  108 
Mass.  347,  11  Am.  R.  357;  Hartley  v. 
Tapley,  2  Gray  (Mass.),  565;  Mulhall 
v.  Quinn,  1  Gray  (Mass.).  105,  61  Am. 
Dec.  414;  Kane  v.  Clough,  36  Mich. 
436,  24  Am.  R.  599;  Weed  v.  Jewett, 
2  Mete.  (Mass.)  608,  37  Am.  Dec.  115; 
Thayer  v.  Kelley,  28  Vt,  19.  65  Am. 
Dec.  220;  Stott  v.  Franey,  20  Oreg. 
410,  23  Am.  St.  R.  132,  26  Pac.  R.  271; 


Adler  v.  Railroad  Co.,  92  Mo.  242,  4 
S.  W.  R.  917;  Provencher  v.  Brooks, 
64  N.  H.  479,  13  Atl.  R.  641;  Field  v. 
Mayor.  6  N.  Y.  179,  57  Am.  Dec.  435. 
See  Gragg  v.  Martin,  12  Allen  (Mass.), 
498,  90  Am.  Dec.  164.  But  accounts 
to  be  made  in  future  years  by  a  phy- 
sician in  his  practice  (Skipper  v. 
Stokes,  42  Ala.  255.  94  Am.  Dec.  646), 
or  of  a  blacksmith  (Pureed  v.  Mather, 
35  Ala.  570,  76  Am.  Dec.  307),  are  not 
assignable.  A  merchant  may  exe- 
cute a  valid  mortgage  on  "  all  future 
book  accounts."  Dunn  v.  Swan,  115 
Mich.  409,  73  N.  W.  R.  386.  The  un- 
earned salary  of  a  public  office  may 
not  be  assigned,  such  assignments 
being  contrary  to  public  policy.  Bliss 
v.  Lawrence,  58  N.  Y.  442,  17  Am.  R. 
273;  Mechem  on  Pub.  Off.,  §  874; 
Bowery  Nat.  Bank  v.  Wilson,  122  N. 
Y.  478,  19  Am.  St.  R.  507,  25  N.  E.  R. 
855,  citing  many  cases;  Schwenk  v. 
Wyckoff,  46  N.  J.  Eq.  560,  19  Am.  St. 
R.  438,  20  Atl.  R.  259. 

Goods  purchased  to  replace  those 
sold  from  a  mortgaged  stock  are  cov- 
ered by  the  mortgage  as  of  its  date. 
McLoud  v.  Wakefield,  70  Vt.  558,  43 
Atl.  R.  179. 

Fruit  to  be  grown  on  trees  now 
owned  by  vendor  may  be  sold.  Cut- 
ting Packing  Co.  v.  Packers'  Ex- 
change. 86  Cal.  574,  21  Am.  St.  R.  63, 
25  Pac.  R.  52;  Arques  v.  Wasson,  51 
Cal.  620,  21  Am.  R.  718;  Dickey  v. 
Waldo,  97  Mich.  255,  23  L.  R.  A.  449. 

Cheese  to  be  made  from  the  milk 
of  cows  now  owned  by  grantor  may 
be  sold.  Van  Hoozer  v.  Cory,  34 
Barb.  (N.  Y.)  12. 


184 


CH.  IV.]  OF   THE   THING    SOLD.  [§§  201,  202. 

he  does  not  own  at  the  time  of  sale,  but  which  he  expects  to 
own." 1 

g  201. .  "  But,"  on  the  other  hand,  as  is  said  by  Morton,  J., 

"  a  mere  possibility  or  expectancy  of  acquiring  property,  not 
coupled  with  any  interest,  does  not  constitute  a  potential  inter- 
est in  it,  within  the  meaning  of  this  rule.  The  seller  must  have 
a  present  interest  in  the  property,  of  which  the  thing  sold  is 
the  product,  growth  or  increase.  Having  such  interest,  the 
right  to  the  thing  sold,  when  it  shall  come  into  existence,  is  a 
present  vested  right,  and  the  sale  of  it  is  valid.  Thus,  a  man 
may  sell  the  wool  to  grow  upon  his  own  sheep,  but  not  upon 
the  sheep  of  another;  or  the  crops  to  grow  upon  his  own  land, 
but  not  upon  land  in  which  he  has  no  interest." 2 

§  202.  Things  not  yet  acquired  by  vendor. —  As  a  general 
rule,  at  law,  there  can  be  no  present  sale  of  things  not  yet 
owned  by  the  veudor,  and  not  potentially  in  existence,  as  ex- 
plained in  the  last  section.  "  The  common-law  maxim  is  con- 
clusive upon  the  point.  Nemo  dat  quod  non  habet"3  "A  mere 
possibility  or  expectancy,  not  coupled  with  any  interest  in  or 
growing  out  of  property,  cannot  be  made  the  subject  of  a  valid 
sale." 4  "  At  law,  although  a  power  is  given  in  the  deed  of 
assignment  to  take  possession  of  after-acquired  property,  no  in- 
terest is  transferred,  even  as  between  the  parties  themselves, 
unless  possession  is  actually  taken."5  These  statements  suffi- 
ciently indicate  the  rigor  of  the  rule  at  law.  "  But  though  the 
actual  sale  is  void,"  says  Mr.  Benjamin,6  "  the  agreement  will 

i  Child  cannot  make  valid  sale  of  v.  Marshall,  10  H.  L.  Cas.  191 ;  Willis- 
his  expectant  interest  in  his  parent's  ton's  Cases  on  Sales,  10.  See,  as  to  the 
estate  during  the  latter's  life-time,  general  rule  at  law,  Jones  on  Chat- 
Wheeler  v.  Wheeler,  2  Mete.  (Ky.)  tel  Mortgages  (4th  ed.),  §  13S  et  seq. ; 
474,  74  Am.  Dec.  421 :  Read  v.  Mosby,  Hutchinson  v.  Ford,  9  Bush  (Ky.),  318, 
87  Tenn.  759,  11  S.  W.  R.  940.  15  Am.  R.  711:  Gittings  v.  Nelson, 

2  Low  v.  Pew,  103  Mass.  347,  supra.  86  111.  591 ;  Borden  v.  Croak,  131  111.  68, 

3  Per  Peters,  J.,  in  Emerson  v.  22  N.  E.  R.  793,  19  Am.  St.  R.  23:  Fer- 
European  &  N.  A.  Ry.  Co.,  67  Me.  387,  guson  v.  Wilson,  122  Mich.  97,  80  N. 
24  Am.  R.  39.  W.  R.  1006. 

4  Per  Judge,  J.,  in  Skipper  v.  Stokes,  6  Benjamin  on  Sale  (6th  Am.  ed.), 
43  Ala.  255,  94  Am.  Dec.  646.  §  80. 

6  Per  Lord  Chelmsford  in  Holroyd 

185 


202.] 


LAW    OF   SALE. 


[book  I. 


take  effect  if  the  vendor,  by  some  act  clone  after  his  acquisition 
of  the  goods,  clearly  shows  his  intention  of  giving  effect  to  the 
original  agreement,  or  if  the  vendee  obtains  possession  under 
authority  to  seize  them." l  This  question  arises  most  frequently 
at  the  present  time  in  controversies  between  the  creditors  of 
the  vendor  and  his  mortgagee  or  vendee  of  the  goods;  and  in 
respect,  particularly,  to  mortgages  upon  such  after-acquired 
goods,  and  crops  growing  or  to  be  grown,  has  often  been  con- 
sidered.2 


JSee  Jones  on  Chattel  Mortgages 
(4th  e<L),  §  158  et  seq.;  Cook  v.  Corthell, 
11  R.  I.  482,  23  Am.  R.  518;  Moore  v. 
Byrurn,  10  S.  C.  452,  30  Am.  R.  58; 
Williams  v.  Briggs,  11  R.  I.  476;  Con- 
greve  v.  Evetts,  10  Exch.  298;  Carr  v. 
Allatt,  3  H.  &  N.  964;  Chidell  v.  Gals- 
worthy, 6  C.  B.  (N.  S.)  470;  Baker  v. 
Gray,  17  C.  B.  462;  Moody  v.  Wright, 
13  Mete.  (Mass.)  29,  46  Am.  Dec.  706; 
Chapman  v.  Weimer,  4  Ohio  St.  481. 
As  to  the  nature  of  the  new  act  re- 
quired, see  Head  v.  Goodwin,  37  Me. 
181;  Griffith  v.  Douglass,  73  Me.  532, 
40  Am.  R.  395. 

2  Much  uncertainty  and  conflict  ex- 
ists in  the  authorities  upon  the  ques- 
tion of  mortgages  and  sales  of  goods 
not  yet  acquired.  See  the  question 
fully  discussed  in  Jones  on  Chat. 
Mortg.  (4th  ed.),  £§  138-175. 

A  crop  planted  on  one's  own  land, 
or  on  land  let  to  him,  as  well  as  a 
crop  planted  and  in  process  of  culti- 
vation, is  the  subject  of  a  valid  mort- 
gage. Rawlings  v.  Hunt,  90  N.  C. 
270. 

A  chattel  mortgage  can  only  op- 
erate upon  property  in  actual  exist- 
ence at  the  time  of  its  execution.  A 
chattel  mortgage  can  have  no  valid 
operation  upon  a  crop  of  grain  given 
at  or  about  the  time  of  planting  the 
same,  and  before  it  is  up  and  has 
any  appearance  of  a  growing  crop. 
The  property  attempted  to  be  mort- 


gaged in  such  case  cannot  be  said 
to  be  in  existence;  the  subject-mat- 
ter not  being  in  esse,  there  is  nothing 
for  it  to  operate  upon.  Comstock 
v.  Scales,  7  Wis.  159.  See  also  Mer- 
chants' Bank  v.  Lovejoy,  84  Wis.  601, 
55  N.  W.  R.  108;  McMaster  v.  Emer- 
son, —  Iowa,  — ,  80  N.  W.  R  389. 

A  mortgage  executed  by  a  tenant 
on  the  crops  to  be  raised  by  him  on 
a  tract  of  ground  leased  by  him  is 
valid  against  his  execution  creditors; 
but  they  may  sell  the  equity  of  re- 
demption. Headrick  v.  Brattain,  63 
Ind.  438. 

A  mortgage  of  future  crops  can- 
not operate  at  the  time  of  its  execu- 
tion, because  the  crops  are  not  then 
in  existence;  but,  as  soon  as  the  crops 
grow,  the  lien  of  the  mortgage  at- 
taches. Butt  v.  Ellett,  19  Wall.  (86 
U.  S.)  544. 

A  contract  between  a  farmer,  en- 
gaged in  raising  corn,  and  a  grain 
dealer,  made  whilst  corn  was  grow- 
ing in  the  field,  whereby  the  farmer 
sold  to  the  dealer  a  certain  quantity 
of  corn,  at  an  agreed  price,  to  be  de- 
livered when  called  for,  the  pur- 
chaser to  give  ten  days'  notice  of  the 
time  he  would  call  for  it,  and  a  part 
of  the  purchase-money  was  paid  at 
the  time  of  making  the  contract,  is 
an  absolute  sale  of  corn,  to  be  deliv- 
ered in  the  future,  and  not  a  con- 
tact for  a  future  sale.     And  in  such 


186 


CH.  IV.J 


OF   THE    THING    SOLD. 


[§  202. 


In  equity,  however,  conveyances  of  future-acquired  goods  are 
often  enforced,  even  though  the  goods  have  not  yet  been  de- 

a  case  the  purchaser  is  bound  to  give    title  to  the  obligee.    Redd  v.  Burrus, 


notice  of  his  readiness  to  receive  the 
corn  within  a  reasonable  time;  and 
if  he  fails  to  do  so,  the  seller  may 
offer  to  deliver  the  corn  without  such 
notice,  and  the  purchaser  is  bound 
to  accept  and  pay  the  contract  price 
for  it.  A  contract  made  when  corn 
is  growing  in  the  field,  for  the  sale  of 
a  certain  amount  of  corn  at  a  stip- 
ulated price  to  be  delivered  in  the 
future,  is  not  illegal,  although  the 
judgment  of  the  parties  as  to  the 
prospect  of  a  corn  crop  may  have 
controlled  them,  more  or  less,  in 
making  the  contract.  Sanborn  v. 
Benedict,  78  111.  309. 

An  agreement  in  the  spring,  be- 
fore the  existence  of  a  crop,  to  give 
another  a  lien  upon  the  crop  to  be 
raised  that  year,  for  property  pur- 
chased and  for  advances,  or  that  the 
crop  shall  belong  to  the  creditor 
until  he  is  paid,  cannot  operate  upon 
the  crop  after  being  raised,  as  a  trans- 
fer by  way  of  pledge  or  mortgage  or 
otherwise,  until  at  least  after  posses- 
sion taken  by  the  creditor,  and  be- 
fore possession  so  taken  the  crop  will 
be  liable  to  an  execution  against 
the  debtor.  Gittings  v.  Nelson,  86 
111.  591. 

A  mortgage  may  be  made  of  a  part 
of  a  growing  crop,  if  the  part  mort- 
gaged be  so  described  as  to  be  iden- 
tified by  parol  evidence;  and  whether 
so  identified  or  not  is  a  question  for 
the  jury  under  the  proof.  Stephens 
v.  Tucker,  55  Ga.  543. 

Thore  can  be  no  valid  sale  or  mort- 
gage of  a  portion  of  a  crop  not 
planted;  therefore,  an  obligation 
dated  25th  of  December,  1874.  to  de- 
liver certain  cotton  of  the  next  year's 
crop  —  the  crop  of  1875  —  passes  no 


58  Ga.  574. 

A  mortgage  on  a  crop  to  be  after- 
wards planted,  unlike  a  mortgage  on 
a  growing  crop,  does  not  pass  to  the 
mortgagee  the  legal  title,  but  creates 
only  an  equitable  lien,  which  will 
not  support  an  action  of  detinue  for 
the  recovery  of  the  crop  after  it  has 
matured  and  been  gathered,  until,  at 
least,  there  has  been  a  delivery  under 
the  mortgage.  A  crop  must  be  con- 
sidered and  treated  as  a  growing 
crop  from  the  time  the  seed  are  de- 
posited in  the  ground,  as  at  that  time 
the  seed  lose  the  qualities  of  a  chat- 
tel, and  become  a  part  of  the  free- 
hold, and  pass  with  a  sale  of  it.  Wilk- 
inson v.  Ketler,  69  Ala.  435. 

At  common  law,  unplanted  crops, 
or  other  things  not  having  an  exist- 
once,  actual  or  potential,  were  not 
the  subject  of  sale,  assignment  or 
mortgage;  but  in  a  court  of  equity 
such  sale,  assignment  or  mortgage 
creates  an  equitable  interest  which 
attaches  to  the  property  when  it 
comes  into  existence  or  is'acquired, 
and  which  the  court  will  enforce 
and  protect  against  all  other  persons 
than  bona  fide  purchasers  without 
notice;  and  for  the  conversion  or 
illegal  disposition  of  the  property, 
with  notice  of  the  lien,  an  action  on 
the  case  may  be  maintained.  Hurst 
v.  Bell,  72  Ala.  336.  See  also  Mayer 
v.  Taylor,  69  Ala.  403;  Collier  v. 
Faulk,  69  Ala.  58;  Electric  Lighting 
Co.  v.  Rust,  117  Ala.  680,  23  S.  R. 
751. 

A  contract  of  sale  of  a  crop  to 
be  thereafter  raised,  harvested  and 
threshed,  made  before  the  seed  was 
sown,  is  inoperative  as  a  sale  against 
a  levy  upon  the  growing  crop  at  the 


187 


202.] 


LAW    OF    SALE. 


[BOOK    I, 


livered  to  or  obtained  by  the  vendee,  after  their  acquisition,  in 
pursuance  of  the  contract.1 


suit  of  the  seller's  creditor.  Welter 
v.  Hill,  63  Minn.  273,  68  N.  W.  R.  26. 

The  lessees  of  a  farni  who  agreed 
in  the  lease  that  they  would  fodder 
the  stock  on  the  farm  with  the  hay 
which  should  grow  thereon,  and  that 
they  would  not  sell,  dispose  of  or 
carry  away,  or  suffer  to  be  carried 
away,  from  the  farm  any  of  the  hay 
without  the  consent  of  the  lessors, 
gave  a  bill  of  sale  to  a  third  person 
of  hay  grown  on  the  farm  after  the 
making  of  the  lease,  and  he  took  pos- 
session. Held,  that  no  title  passed 
to  him,  and  he  had  no  insurable  in- 
terest, although  he  intended  to  carry 
on  the  farm  and  not  to  carry  off  the 
hay.  Heald  v.  Builders'  Ins.  Co.,  Ill 
Mass.  38. 

A  mortgage  on  a  crop  to  be 
planted,  and  to  secure  payment  for 
supplies  necessary  to  enable  the  mort- 
gagor to  "make  the  crop,"  is  valid 
even  as  against  creditors.  Watkins 
v.  Wyatt,  9  Baxt.  250,  30  Am.  R.  63, 
note;  Hall  v.  Glass,  123  Cal.  500,  56 
Pac.  R.  336. 

A  mortgage  of  a  growing  crop  is 
valid.  Cotten  v.  Willoughby,  83  N.  C. 
75,  35  Am.  R.  564. 

The  lessee  of  land  in  possession  ex- 
ecuted a  mortgage  of  the  crops  to 
be  raised  by  him  the  coming  season, 
and  which  were  not  yet  planted. 
Held,  that  the  mortgage  was  valid. 
Arques  v.  Wasson,  51  Cal.  620,  21 
Am.  R.  718. 

A  contract  in  writing,  dated  in 
December,  by  which  a  debtor,  in 
consideration  of  indulgence,  gave  to 
his  creditor  "a  mortgage  on  all  my 
(his)  cotton,  corn  and  wheat  that  I 
may  raise  during  the  then  next  year, 
to  secure  the  payment  of  the  debt; 
and  in  default  of  payment  by  the  1st 


of  November  next,  then  I  authorize 
the  said "  creditor  or  his  agent  to 
"take  all  the  crops  raised  by  me,'' 
was  held  a  good  and  enforceable  lien 
upon  the  crops  mentioned  therein, 
although  they  had  not  been  planted 
when  the  contract  was  made,  the 
mortgagee  having  taken  the  prop- 
erty into  his  possession  after  it  is 
acquired  and  before  the  rights  of 
others  as  creditors  or  purchasers 
have  attached  thereon.  Moore  v. 
Byrum,  10  S.  C.  452,-30  Am.  R.  58. 

A  mortgage  of  a  crop  to  be  raised 
on  a  farm  during  a  certain  term,  but 
which  is  not  yet  sown,  passes  no  title, 
and  the  mortgagee  has  no  claim 
against  a  purchaser  of  the  crop,  for 
it  or  its  value.  Hutchinson  v.  Ford, 
9  Bush,  318,  15  Am.  R.  711. 

i  Jones,  Chat.  Mortg.  (4th  ed.), 
§§  170-175;  Mitchell  v.  Winslow,  2 
Story  (IT.  S.  C.  C),  644,  17  Fed.  Cas., 
p.  527;  Butt  v.  Ellett,  19  Wall.  (U.  S.) 
544;  Apperson  v.  Moore,  30  Ark.  56. 

21  Am.  R  170;  Pennock  v.  Coe,  23 
How.  (IT.  S.)  117;  Brett  v.  Carter,  2 
Low.  (U.  S.  C.  C.)  458, 4  Fed.  Cas.,  p.  67 ; 
McCaffrey  v.  Woodin,  65  N.  Y.  459, 

22  Am.  R  644;  Sillers  v.  Lester,  48 
Miss.  513;  Booker  v.  Jones,  55  Ala,  266. 

In  Rochester  Distilling  Co.  v.  Rasey 
(1894),  142  N.  Y.  570,  37  N.  E.  R  632, 
40  Am.  St.  R.  635,  the  subject  was 
fully  discussed.  The  syllabus  gives 
the  conclusion  reached  and  is  as  fol- 
lows: 

"  A  chattel  mortgage  cannot,  as  a 
matter  of  law,  be  given  future  effect 
as  a  lien  upon  personal  property 
which  at  the  time  of  the  delivery  of 
the  mortgage  was  not  in  existence, 
actually  or  potentially,  when  the 
rights  of  creditors  of  the  mortgagor 
have  intervened;  the  mortgage  can 


188 


OH.  IV.] 


OF   THE    THING    SOLD. 


[§  203. 


§  203.  Contracts  of  sale  for  future  delivery.— It  was  at 

one  time  thought,  in  England,1  that  contracts  for  the  sale  and 
future  delivery  of  goods  which  the  vendor  did  not  then  have, 
or  which  he  had  no  reasonable  expectation  of  receiving  by  con- 
signment or  otherwise,  but  which  he  intended  to  go  into  the 
market  and  buy,  were  not  valid  contracts,  but  mere  wagers  on 
the  price  of  the  goods.  But  while  this  form  of  contract  may 
afford  easy  opportunity  for  wagering,  it  is  now  well  settled, 
both  in  England  and  the  United  States,  as  will  be  more  fully 
seen  hereafter,2  that  such  contracts  are  not  necessarily  invalid, 
but  are  valid  or  not  according  to  the  actual  intention  of  the 
parties.3     The  rule  has  been  stated  by  the  court  in  Indiana  as 


only  operate  on  property  in  actual 
existence  at  the  time  of  its  execu- 
tion. 

"  While  such  a  mortgage  may,  as 
between  the  parties,  be  regarded  in 
equity  as  an  executory  agreement  to 
give  a  lien  when  the  property  comes 
into  existence,  some  further  act 
thereafter  is  requisite  to  make  it  an 
actual  and  effectual  lien  as  against 
creditors. 

"  Crops  which  are  the  annual  prod- 
uct of  labor,  and  of  the  cultivation 
of  the  earth,  have  no  actual  or  po- 
tential existence  before  a  planting. 

"The  lessee  of  certain  farm  lands 
executed  a  chattel  mortgage,  by  its 
terms  covering,  among  other  things, 
all  the  potatoes  and  beans  '  which 
are  now  .  .  .  planted  or  which 
are  hereafter  .  .  .  planted  dur- 
ing the  next  year.'  The  greater  part 
of  the  planting  of  potatoes  and  all 
that  of  the  beans  was  done  after  the 
delivery  of  the  mortgage.  After  the 
planting  the  growing  crops  were 
levied  upon  and  sold  under  an  exe- 
cution against  the  lessee,  and  plaint- 
iff became  the  purchaser.  The  mort- 
gagor subsequently  foreclosed  his 
mortgage  and  sold  said  crops  to  de- 


fendant, who  took  possession.  In  an 
action  to  recover  possession,  held, 
that  the  levy  by  the  sheriff  operated 
to  transfer  to  him  possession  of  the 
crops;  that  in  the  absence  of  proof 
of  any  act  by  the  parties  to  the  mort- 
gage to  create  an  actual  lien  as 
against  such  possession,  the  equities 
of  the  mortgagee  were  ineffectual 
for  any  purpose;  and  that  plaintiff 
was  entitled  to  the  potatoes  and 
beans  obtained  from  the  planting 
done  after  the  execution  and  deliv- 
eiy  of  the  mortgage." 

i  Bryan  v.  Lewis,  Ry.  &  Moo.  386, 
overruled  in  Hibblewhite  v.  McMor- 
ine,  5  M.  &  W.  462. 

2  See  post,  §§1030-1038. 

3  Irwin  v.  Williar,  110  U.  S.  499; 
Hatch  v.  Douglas,  48  Conn.  116,  40 
Am.  R.  154;  Whitesides  v.  Hunt,  97 
Ind.  191,  49  Am.  R.  441;  Gregory  v. 
Wendell,  39  Mich.  337,  33  Am.  R.  390; 
Conner  v.  Robertson,  37  La.  Ann.  814, 
55  Am.  R.  521 ;  Crawford  v.  Spencer, 
92  Mo.  498,  1  Am.  St.  R.  745;  Bige- 
low  v.  Benedict,  70  N.  Y.  202,  26 
Am.  R.  573;  Seeligson  v.  Lewis,  65 
Tex.  215,  57  Am.  R.  593;  Wall  v. 
Schneider,  59  Wis.  352,  48  Am.  R.  520; 
Sondheim  v.  Gilbert,  117  Ind.  71,  10 


189 


§  203.]  LAW  OF  SALE.  [BOOK  I. 

follows:  ""Where  a  commodity  is  bought  for  future  delivery, 
no  matter  what  the  form  of  the  contract  is,  the  law  regards 
the  substance  and  not  the  shadow,  and  if  the  parties  mutually 
understood  and  intended  that  the  purchaser  should  pay  for  and 
the  seller  should  deliver  the  commodity  at  the  maturity  of  the 
contract,  it  is  a  legal  and  valid  transaction ;  and  the  fact  that 
the  purchaser  is  required  to  deposit  a  margin  and  increase  the 
same  at  any  time  the  market  requires  it,  in  order  to  secure  the 
payment  at  maturity,  or  that  the  seller  shall  deposit  a  margin 
and  increase  the  same,  like  the  purchaser,  in  order  to  secure 
the  delivery  at  maturity,  does  not  vitiate  the  contract.  But  if, 
at  the  time  of  the  contract,  it  is  mutually  understood  and  in- 
tended by  all  the  parties,  whether  expressed  or  not,  that  the 
commodity  said  to  be  sold  was  not  to  be  paid  for  nor  to  be  de- 
livered, but  that  the  contract  was  to  be  settled  and  adjusted 
by  the  payment  of  difference  in  price — if  the  price  should  de- 
cline the  purchaser  paying  the  difference,  if  it  should  rise  the 
seller  paying  the  advance,  the  contract  price  being  the  basis 
upon  which  to  calculate  differences, —  in  such  a  case  it  would 
be  a  gambling  contract  and  void  and  the  deposits  of  margins 
are  only  to  be  considered  as  attempting  to  secure  the  terms  of 
the  bet  on  prices  at  some  future  time."  !  It  is  not  enough,  as 
will  be  more  fully  seen  hereafter,  to  render  the  contract  void 
that  one  party  only  intended  by  it  a  speculation  in  prices;  it 
must  be  shown  that  both  parties  did  not  intend  a  delivery  of 
the  goods,  but  contemplated  and  intended  a  settlement  only 
of  differences.  The  burden  of  showing  the  invalidity  of  the 
contract  rests  upon  the  party  asserting  it.2 

Am.  St.  R.  23;  McGrew  v.  Produce  ences  is  contrary  to  the  gaming  act, 

Exchange,  84  Tenn.  572,  4  Am.  St.  R.  notwithstanding  that  the  contract 

771 ;  In  re  Taylor,  192  Pa.  St.  304,  309,  gives  the  buyer  or  seller  an  option  to 

43  Atl.  R.  973,  975.  demand   delivery  or  acceptance  of 

As  to  the  general  rule  and  the  ef-  the  stocks.    In  re  Gieve,  [1899]  1  Q.  B. 

feet  of  the  Illinois  statute,  see  Clews  794. 

v.  Jamieson  (1899),  38  C.  C.  A.  473,  96  1  In  Whitesides  v.  Hunt,  supra. 

Fed.  R.  648;  Wolf  v.  Nat.  Bank,  178  2See  post,  §  1032;  Irwin  v.  Williar, 

111.  85,  52  N.  E.  R.  896.  A  contract  supra;  Crawford  v.  Spencer,  supra. 
between  two  stock  dealers  for  differ- 

190 


CHAPTEK  v. 


OF  THE  PRICE. 


§  204  Necessity  of  a  price. 

205.  Executory  contracts. 

206.  Executed  contracts. 

207.  Where  price  not  agreed  upon, 

reasonable  value  will  deter- 
mine. 

208.  Market  price  —  Market  con- 


trolled by  monopolistic  com- 
bination. 

209.  Other  methods  of  fixing  price. 

210,  211.  Price  must  be  fixed  with 

certainty. 
212,213.  Price  to  be  fixed  by  valuers. 
214.  Payment  of  the  price. 


§  204.  Necessity  of  a  price.—  A  distinguishing  feature  of  a 
sale,  as  has  been  seen,  is  that  it  is  a  transfer  of  the  absolute  title 
to  a  thing  for  a  price  in  money  or  its  equivalent.1  There  can 
therefore  be  no  valid  sale  unless  this  price  has  been  determined 
upon  by  the  parties  themselves,  either  expressly  or  impliedly, 
or  unless  some  means  or  method  be  agreed  upon  by  the  parties 
or  established  by  law  by  which  the  price  may  be  determined.2 

§  205.  Executory  contracts. —  Hence  in  the  case  of 

executory  contracts,  where  parties  are  negotiating  in  respect 
of  a  sale  and  of  the  price  to  be  paid  thereon,  the  contract  of 
sale  cannot  be  deemed  to  be  completed  so  long  as  the  price  re- 
mains undetermined.3  There  will,  therefore,  be  no  sale  if  the 
parties,  though  apparently  agreed,  are  really  mutually  mis- 
taken as  to  the  price  to  be  paid.4  There  will  also  be  no  sale  if 
the  price  is  left  to  be  afterwards  agreed  upon,  and  the  parties 
fail  afterwards  to  agree;5  though  if  the  sale  be  for  a  reason- 
able price  to  be  afterwards  agreed  upon,  and  the  parties  can- 
not agree,  the  law  will  supply  the  method.6 


1  See  ante,  §  1. 

2  A  transfer  of  property  cannot  be 
regarded  as  a  sale  thereof  when  no 
purchase  price  has  been  agreed  upon, 
nor  the  price  in  any  manner  made 
definite,  nor  any  means  agreed  upon 
by  which  the  price  can  be  ascertained. 
Borland  v.  Nevada  Bank,  99  Cal.  89, 
33  Pac.  R.  737,  37  Am.  St.  R.  32. 

3  Foster  v.  Lumbermen's  Mining 


Co.,  68  Mich.  188,  36  N.  W.  R.  171 
[citing  Williamson  v.  Berry,  8  How. 
(U.  S.)  544];  Bigley  v.  Risher.  63  Pa. 
St,  152;  Devaue  v.  Fennell,  2  Ired. 
(N.  C.)  36. 

*  See  post,  §  278. 

3  Wittkowsky  v.  Wasson,  71  N.  C. 
451;  Albemarle  Lumber  Co.  v.  Wil- 
cox, 105  N.  C.  34. 

6  Greene  v.  Lewis,  85  Ala.  221,  4  S. 


191 


§§  206,  207.]  LAW  OF   SALE.  [book  I. 

§  206,  Executed  contracts. —  In  the  case  of  executed 

contracts,  however,  "  the  rule  is  settled  that  the  title  to  per- 
sonal property  may  pass  to  a  vendee  without  fixing  an  abso- 
lute price,  if  the  circumstances  attending  the  transaction  satis- 
factorily show  such  to  be  the  clear  intention' of  the  contracting 
parties." 1  "  In  the  latter  class  of  contracts,"  *.  e.,  the  executed 
contracts,  "  where  the  seller,  whether  by  actual  delivery  or 
other  like  unequivocal  act,  intentionally  passes  the  property  in 
specific  goods  to  the  purchaser  without  fixing  the  price,  the 
law  leaves  the  price  to  be  adjusted  by  the  agreement  of  the 
parties,  or,  if  they  fail  to  agree,  by  the  verdict  of  a  jury.  If 
such  price  is  left  open  for  future  adjustment  by  consent,  the 
property  being  delivered  with  the  expressed  intention  to  com- 
plete the  sale,  the  price  to  be  agreed  on  is  implied  to  be  one 
that  is  fair  and  reasonable,  and  this  is  always  the  rule  of 
recovery  on  a  quantum  meruit  or  quantum  valebat.  If  there 
should  or  can  be  no  mutual  consent,  the  implication  follows  as 
part  of  the  original  contract  of  sale,  that  a  jury  will  adjust  it, 
just  as  manifestly  as  in  every-day  sales  and  delivery  of  goods 
by  merchants  on  open  account,  where  the  price  is  very  often 
not  adjusted  for  months  afterward."2 

§  207.  Where  price  not  agreed  upon,  reasonable  worth  is 
the  price. —  Where  the  parties  have  agreed  upon  the  other  ele- 
ments of  the  sale,  but  have  made  no  reference  to  the  price,  and 
therefore  have  not  disagreed  upon  it  or  left  it  open  for  further 
negotiation,  and  where  it  is  agreed  that  the  title  shall  pass,  and 
the  price  shall  be  adjusted  afterwards,  and  no  other  adjustment 
is  made,  the  law  implies  that  the  goods  are  to  be  paid  for  at 
what  they  are  reasonably  worth.3 

R.  740,   7  Am.  St.  R  42.    See  also  Valpy  v.  Gibson,  4  C.  B.  837;  Ma- 

Hassard  v.  Hardison,  117  N.  C.  60,  23  comber  v.  Parker,  13  Pick.  (Mass.) 

S.  E.  R.  96.  175;  Bos  well  v.  Green,  1  Dutch.  (N.  J.) 

"See  2x>st,  §§  493-498;   Greene  v.  390. 

Lewis,  85  Ala.  221,  4  S.  R.  740,  7  Am.  3  Acebal    v.    Levy,    10    Bing.   376; 

St.  R.  42;  Shealy  v.  Edwards,  73  Ala.  Hoadly   v.   McLaine,  10   Bing.   482; 

175,  49  Am.  R.  43,  75  Ala,  411;  Wilk-  Shealy  v.  Edwards,  73   Ala.  175,  49 

inson  v.  Williamson,  76  Ala.  163.  Am.  R.  43;  Greene  v.  Lewis,  85  Ala. 

2  Shealy  v.  Edwards,  73  Ala.  175,  49  221,  7  Am.  St.  R.  42,  4  S.  R.  740;  Lore- 
Am.  R  43,  citing  Benj.  Sales,  §  87;  joy  v.  Michels,  88  Mich.  15,  49  N.  W. 

192 


CH.  V.] 


OF   THE    PKICE. 


[§  208. 


For  like  reasons,  where  the  parties  have  fixed  the  price,  but 
their  agreement  in  that  respect  is  invalid  because  the  price  was 
fixed  on  Sunday,  the  law,  if  the  sale  is  otherwise  complete  and 
valid,  will  imply  a  promise  to  pay  what  the  goods  are  reason- 
ably worth.1 

So,  also,  "  under  an  allegation  of  an  agreed  price,  if  there  is 
a  failure  to  prove  the  agreement  as  to  price,  evidence  of  value 
is  competent  for  the  purpose  of  a  recovery  of  what  the  article 
was  fairly  worth,  but  not  to  sustain  a  recovery  beyond  the 
amount  alleged."2  Where,  however,  the  price  is  fixed  by  the 
contract,  that  price  must  govern,  and  the  mere  fact  that  there 
is  conflict  in  the  evidence  as  to  what  the  price  was,  will  not 
justify  the  jury  in  declining  to  ascertain  that  price  and  award- 
ing the  reasonable  value  in  its  place.3 

§  208.  Market  price  — Market  controlled  by  monopolistic 
"  combination." — This  reasonable  worth  or  price  is  usually 


R.  901,  13  L.  R.  A.  7T0;  James  v. 
Muir,  33  Mich.  223;  Comstock  v. 
Sanger,  51  Mich.  497, 16  N.  W.  R.  872: 
Livingston  v.  Wagner,  23  Nev.  53,  42 
Pac.  R.  290;  Snodgrass  v.  Broadwell, 
2  Litt.  (Ky.)  353;  Jenkins  v.  Ricttard- 
son,  6  J.  J.  Marsh.  (Ky.)  442;  Tucker 
v.  Cady,  25  I1L  App.  578.  The  mar- 
ket price  at  the  time  of  the  sale  is  to 
govern,  unaffected  by  subsequent 
changes.  Hill  v.  Hill,  1  N.  J.  L.  261. 
And  where  goods  are  ordered  to  be 
shipped  the  market  value  at  the  time 
and  place  of  shipment  controls.  Fen- 
ton  v.  Braden,  2  Cranch,  C.  C.  550,  8 
Fed.  Cas.,  p.  1140. 

Where  parties  have  had  a  contract 
for  a  specific  quantity  of  goods  at  a 
certain  price,  and  more  are  ordered, 
there  is  no  implied  understanding 
that  these  shall  be  at  the  same  price, 
especially  where  it  is  known  that  the 
market  price  has  advanced.  Rice  v. 
Western  Fuse  Co.,  64  111.  App.  603. 

Where  A  says  to  B:  "When  you 
are  ready  to  sell  your  corn,  deliver 


it  at  my  warehouse  and  I  will  make 
it  satisfactory  as  to  the  price,"  and 
B  delivers  it,  the  law  will  imply 
a  promise  to  pay  the  market  price. 
McEwen  v.  Morey,  60  I1L  32.  The 
owner  of  a  chattel  requested  A  to 
sell  it  but  named  no  price.  A  con- 
tracted to  sell  it  to  B  at  a  certain 
prica  Before  B  accepted  it,  he  met 
the  owner,  who  notified  B  to  pay  no 
one  but  himself,  to  which  B  assented 
but  no  price  was  named.  Held,  an 
assent  to  the  sale,  and,  as  no  price 
was  named,  the  reasonable  value 
could  be  recovered.  Taft  v.  Travis, 
136  Mass.  95. 

i  Bradley  v.  Rea,  14  Allen  (Mass.), 
20;  s.  C,  103  Mass.  188,  4  Am.  R  524. 

2  Livingston  v.  Wagner.  23  Nev.  53, 
42  Pac.  R.  290,  quoting  Abbott's  Trial 
Evidence,  306,  and  citing  Sussdorf 
v.  Schmidt,  55  N.  Y.  319;  Trimble  v. 
Stillwell,  4  E.  D.  Smith,  512. 

3  Illinois  Linen  Co.  v.  Hough,  91 
111.  63. 


13 


193 


208.] 


LAW    OF   SALE. 


[book 


the  market  or  current  price,  but  it  is  not  necessarily  so.1  As  is 
said  in  a  leading  case:2  "The  current  price  of  the  day  may  be 
highly  unreasonable  from  accidental  circumstances,  as  on  ac- 
count of  the  commodity  having  been  purposely  kept  back  by  the 
vendor  himself,  or  with  reference  to  the  price  at  other  ports 
in  the  immediate  vicinity,  or  from  various  other  causes." 
Where,  therefore,  the  present  market  price  is  one  fixed  arbi- 
trarily by  a  combination  of  all  the  manufacturers  or  dealers  in 
a  given  article,  that  price  cannot  control  where  one  has  pur- 
chased such  goods  not  knowing  of  this  price  and  not  agreeing 
to  pay  it.3 


iKountz  v.  Kirkpatrick.  72  Pa.  St. 
378.  13  Am.  R.  687;  Smith  v.  Griffith, 
3  Hill  (N.  Y.),  337,  38  Am.  Dec.  639; 
Blydenburgh  v.  Welsh,  Bald.  (U.S. D.) 
331. 

2  Acebal  v.  Levy,  supra. 

3Lovejoy  v.  Michels,  88  Mich.  15,  13 
L.  R.  A.  770,  49  N.  W.  R.  901. 

Champlin,  C.  J.,  said:  "I  do  not 
think  a  price  so  fixed  by  a  combina- 
tion of  manufacturers  or  dealers  is 
competent  evidence  to  show  a  reason- 
able price  of  goods  sold  by  the  mem- 
bers of  such  combination.  Such 
combinations  to  control  prices  are 
intended  to  stifle  competition,  which 
is  a  stimulus  of  commercial  transac- 
tions, and  to  substitute  therefor  the 
stimulus  of  unconscionable  'gain, 
whereby  the  participants  in  such 
combinations  become  enriched  at  the 
expense  of  the  consumer,  beyond 
what  he  ought  legitimately  to  pay, 
under  a  healthy  spirit  of  competition 
in  the  business  community.  The  ef- 
fect of  such  combinations  to  control 
prices  is  the  same  as  that  other  class 
of  contracts  which  has  always  been 
denounced  as  vicious,  namely,  con- 
tracts in  restraint  of  trade.  Public 
policy  places  its  reprobation  upon  one 
equally  with  the  other.  These  com- 
binations to  control  prices  are  be- 


coming very  numerous,  and  affect 
not  only  the  staples  of  human  sus- 
tenance, but  nearly  all  the  neces- 
saries of  life  and  the  necessaries  of 
business.  Such  combinations  to  con- 
trol prices  are  against  public  policy, 
and  void,  on  the  ground  that  they 
have  a  mischievous  tendency,  so  as 
to  be  injurious  to  the  best  interests 
of  the  State.  The  best  interests  of 
the  State  require  that  all  legitimate 
business  should  be  open  to  competi- 
tion; that  the  current  price  of  com- 
modities should  be  controlled  by  the 
law  of  demand  and  supply;  that  the 
laws  of  commerce  should  flow  in  their 
accustomed  channels,  and  should  not 
be  diverted  by  combinations  to  con- 
trol prices  fixed  by  the  arbitrary  de- 
cision of  interested  parties.  Of  course, 
what  is  said  above  does  not  apply  to 
monopolies  authorized  by  law;  as, 
for  instance,  to  patented  articles. 
The  odious  features  of  illegal  monop- 
olies are  plainly  apparent.  These  can 
absolutely  control  the  prices  which 
the  public  shall  pay,  and  it  is  this 
monopolistic  feature  of  such  com- 
binations to  control  prices  which 
stamps  them  as  odious,  because  they 
exercise  the  franchises  of  the  mo- 
nopoly without  the  legal  right.  These 
views  are  supported  in  the  following 


194 


■CH.  V.] 


OF    THE    PRICE. 


[§  209. 


§  209.  Other  methods  of  fixing  price. —  There  may  also  be 
many  other  methods  adopted  for  fixing  the  price.  The  mate- 
rial point  is  not  a  particular  method,  but  whether  the  method 
chosen  will  result  in  fixing  the  price  with  requisite  certainty, 
cases:  Anderson  v.  Jett,  89  Ky.  '675,    reasonably  worth.     As  pointed  out 


6  L.  R.  A.  390.  12  S.  W.  R.  670;  Rail- 
road Co.  v.  Closser,  126  Ind.  348,  9  L. 
R.  A.  754,  26  N.  E.  R.  159;  People  v. 
Refining  Co.,  54  Hun  (N.  Y.),  354,  5 
L.  R.  A.  386;  Richardson  v.  Buhl,  77 
Mich.  632,  6  L.  R.  A.  457,  43  N.  W.  R, 
1102;  Carbon  Co.  v.  McMillin,  119 
N.  Y.  46,  7  L.  R.  A.  46,  23  N.  E.  R.  530; 
Stanton  v.  Allen,  5  Denio,  434,  49  Am. 
Dec.  282;  Morris  Run  Coal  Co.  v. 
Barclay  Coal  Co.,  68  Pa.  St.  173,  8 
Am.  R.  159;  Arnot  v.  Coal  Co.,  68 
N.  Y.  558,  23  Am.  R.  190;  Salt  Co.  v. 
Guthrie,  35  Ohio  St.  666;  Association 
v.  Koch,  14  La.  Ann.  168;  Denver, 
etc.  R.  Co.  v.  Atchison,  etc.  R.  Co.,  15 
Fed.  R.  650;  Hilton  v.  Eckersley,  6 
El.  &  Bl.  47;  West  Va.  Trans.  Co.  v. 
Ohio  River  Pipe-Line  Co.,  22  W.  Va. 
600,  617;  W.  U.  Teh  Co.  v.  American 
Union  Tel.  Co.,  65  Ga.  160,  38  Am.  R. 
781;  Craft  v  McConoughy.  79  111.  346, 
22  Am.  R.  171;  Raymond  v.  Leavitt, 
46  Mich.  447,  41  Am.  R.  170,  9  N.  W. 
H.  525:  Faulds  v.  Yates,  57  111.  416, 11 
Am.  R.  24;  Wright  v.  Ryder,  36  Cal. 
342,  95  Am.  Dec.  186. 

"  I  have  no  doubt  that  in  executory 
contracts  of  sale,  where  the  goods 
have  not  been  accepted,  such  price 
so  fixed  cannot  be  recovered;  and  I 
am  also  of  opinion  that  such  price  so 
fixed  is  no  criterion  of  the  market 
value  or  current  price  in  an  action 
brought  for  goods  sold  and  delivered, 
where  no  price  has  been  agreed  upon. 
In  this  case  the  goods  have  been 
ordered  and  accepted  without  any 
reference  to  the  price  to  be  paid,  and 
the  law  presumes  that  defendant  in- 
tended to  pay  what  the  knives  were 


in  James  v.  Muir,  33  Mich.  223,  the 
market  value  and  reasonable  worth 
of  a  commodity  are  not  always  the 
same.  Ordinarily  the  market  value 
is  evidence  of  what  goods  are  reason- 
ably worth.  Kountz  v.  Kirkpatrick, 
72  Pa.  St.  376,  386,  13  Am.  R.  687; 
Benj.  Sales,  p.  103,  §  86.  If  there  be 
no  market  value  of  manufactured 
goods,  the  evidence  to  establish  the 
reasonable  worth  must  necessarily 
be  the  cost  of  production,  which 
would  include  the  cost  of  labor  and 
material,  and  a  reasonable  profit  on 
the  cost  of  production." 

And  McGrath,  J.,  said :  "  A  price  so 
fixed  is  not  entitled  to  rank  as  the 
market  price.  It  is  not  a  market 
price,  within  the  contemplation  of 
the  law.  The  market  price  of  an 
article  manufactured  by  a  number 
of  different  persons  is  a  price  fixed 
by  buyer  and  seller  in  an  open  mar- 
ket, in  the  usvial  and  ordinary  course 
of  lawful  trade  and  competition.  It 
cannot  be  divested  of  these  incidents, 
and  retain  its  character.  Associations 
of  this  character  give  the  buyer  no 
voice,  and  close  the  market  against 
competition.  In  Acebal  v.  Levy,  10 
Bing.  376,  cited  in  Benjamin  on  Sales, 
§  86,  the  court  declared  that,  when 
there  was  no  express  contract  as  to 
price,  the  price  is  to  be  a  reasonable 
price, —  'such  a  price  as  the  jury  upon 
the  trial  of  the  cause  shall,  under  all 
the  circumstances,  decide  to  be  rea- 
sonable. This  price  may  or  may  not 
agree  with  the  current  price  of  the 
commodity  at  the  port  of  shipment 
at  the  precise  time  when  such  ship- 


195 


§  209.] 


LAW    OF    SALE. 


[BOOK   I. 


As  is  said  in  one  case,  "the  price  to  be  paid  must  be  certain, 
or  some  guide  must  be  agreed  on  by  which  it  can  be  found 
with  certainty.  There  may  be  a  sale  for  a  reasonable  price,  in 
which  case,  if  the  parties  afterwards  differ,  the  price  must  be 
made  certain  by  the  verdict  of  a  jury.  Or  there  may  be  a  sale 
at  a  price  to  be  afterwards  fixed  by  valuers.  In  such  case  if 
the  valuers  refuse  to  fix  the  price,  the  sale  is  considered  incom- 
plete, or  else  as  rescinded  by  the  refusal.  If,  indeed,  the  thing 
sold  has  been  delivered  to  the  vendee,  and  consumed,  so  that 


merit  is  made.  The  current  price  of 
the  day  may  be  highly  unreasonable 
from  accidental  circumstances,  as  on 
account  of  the  commodity  having 
been  purposely  kept  back  by  the 
vendor  himself,  or  with  refei'ence  to 
the  price  at  other  ports  in  the  imme- 
diate vicinity,  or  from  various  other 
causes.'  In  James  v.  Muir,  33  Mich. 
223-227,  Mr.  Justice  Campbell,  speak- 
ing for  the  court,  says:  "According 
to  Acebal  v.  Levy,  there  is  at  least 
no  implication  of  a  promise  to  pay  at 
what  may  happen  to  be  the  market 
rate,  which  may  not  be  always,  as 
there  held,  a  reasonable  rate."  In 
Kountz  v.  Kirk  patrick,  72  Pa.  St.  376, 
13  Am.  R.  687,  the  court  say:  "Ordi- 
narily, when  an  article  of  sale  is  in 
the  market,  and  has  a  market  value, 
there  is  no  difference  between  its 
market  value  andlhe  market  price, 
and  the  law  adopts  the  latter  as  the 
proper  evidence  of  the  value.  This 
is  not,  however,  because  '  value '  and 
'  price '  are  really  convertible  terms, 
but  only  because  they  are  ordinarily 
so  in  a  fair  market.  The  market 
price  of  an  article  is  only  a  means  of 
arriving  at  compensation;  it  is  not 
itself  the  value  of  the  article,  but  is 
the  evidence  of  value.  The  law 
adopts  it  as  a  natural  inference  of 
fact,  but  not  as  a  conclusive  legal 
presumption.    Without  adding  more, 


I  think  it  is  conclusively  shown  that 
what  is  called  the  '  market  price '  or 
the  quotations  of  the  articles  for  a 
given  day  is  not  always  the  only  evi- 
dence of  actual  value,  but  that  the 
true  value  may  be  drawn  from  other 
sources,  when  it  is  shown  that  the 
price  for  the  particular  day  has  been 
unnaturally  inflated." 

"It  has  frequently  been  held  that 
the  value  of  a  commodity  is  not  to 
be  determined  by  the  necessities  of  a 
particular  buyer  or  the  demands  of 
a  particular  seller.  If  the  'current 
price '  is  not  conclusive  upon  the  pur- 
chaser, because  the  vendor  may  have 
by  some  act  of  his  own  made  that 
price  unreasonable,  or  if  it  may  be 
shown  that  the  market  price  had 
been  unnaturally  inflated,  how  can 
it  be  said  that  a  price  fixed  by  a  com- 
bination of  the  manufacturers  of  a 
given  article,  with  sole  reference  to 
their  interests,  is  to  govern,  to  the 
exclusion  of  all  other  considerations? 
In  such  case  there  is  no  market  price, 
and  evidence  of  a  fair  market  pi'ice 
or  a  fair  market  value  is  clearly  ad- 
missible. In  the  absence  of  an  agree- 
ment, a  price  fixed  by  a  combination 
of  dealers  does  not  bind  the  pur- 
chaser, nor  will  the  law  so  far  coun- 
tenance such  combinations  as  to 
regard  prices  fixed  by  them  as  even 
evidence  of  value." 


196 


CH.  V.]  OF   THE    PRICE.  [§  210. 

the  parties  cannot  be  put  in  statu  quo,  the  vendee  is  liable  for 
a  reasonable  price.1  But  there  cannot  be  an  executed  sale  so 
as  to  pass  the  property,  where  the  price  is  to  be  fixed  by  agree- 
ment between  the  parties  afterwards,  and  the  parties  do  not 
afterwards  agree.  One  element  of  a  sale  is  wanting,  just  as  a 
different  element  would  be  if  the  thing  were  not  ascertained. 
If,  in  such  case,  the  thing  was  actually  delivered  and  consumed, 
the  vendee  would  be  liable,  not  upon  the  special  imperfect  con- 
tract, but  on  an  implied  contract  to  pay  a  reasonable  price."2 

§  210.  Method  must  fix  price  with  certainty. —  It  is  not, 
therefore,  necessary  that  the  price  should  be  fixed  by  the  con- 
tract itself,  or  at  the  very  time  the  contract  is  made,  provided 
that  the  parties  have  settled  upon  some  method  hy  which  the 
price  may  be  determined  with  certainty.  "If  the  parties  set- 
tle between  themselves  some  method  by  which  it  may  be  as- 
certained at  a  future  period,  the  maxim  id  certum  est  quod  cer- 
tain reddi potest  applies,  and  the  price  when  sb  settled  shall 
relate  to  the  original  contract." 3  Thus  where  the  contract  for 
the  sale  of  a  village  lot  provided  that  the  price  should  be  that 
at  which  the  first  lots  in  the  vicinity  should  be  sold,  and  lots 
adjoining  the  one  in  question  were  sold  before  the  action  was 
brought,  it  was  held  that  the  contract  was  thus  rendered  cer- 
tain.4 So  where  the  contract  provided  that  the  price  of  wheat 
sold  should  be  ten  cents  per  bushel  less  than  the  Milwaukee 
market  price  on  a  day  which  the  vendor  should  thereafter 
name,  it  was  held  sufficient  though  the  wheat  was  destroyed 
before  the  day  was  fixed.5  And  a  contract  for  the  sale  of 
wheat  which  provided  for  payment  at  the  market  price  on  the 
day  when  the  vendor  should  demand  payment  was  held  suffi- 

1  Citing  Benjamin  on  Sales,  69;  value  of  gold.  Ames  v.  Quimby,  96 
Clarke  v.  Westrope,  18  C.  B.  765.  U.  S.  324 

2  Wittkowsky  v.  Wasson,  71  N.  C.  4  Cunningham  v.  Brown,  siqjra. 
451.  5  McConnell  v.  Hughes,  supra.    So 

sMcBride  v.  Silverthorne,  11  Up.  in  Shaw  v.  Smith,  45  Kan.  334. 25  Pac. 
Can.  Q.  B.  545  (citing  Ross  on  Vendors,  R.  886,  11  L.  R.  A.  681,  Mechem's  Cas. 
51);  McConnell  v.Hughes,  29  Wis.  537;  on  Damages,  260,  the  price  of  flax- 
Cunningham  v.  Brown,  44  Wis.  72.  seed  was  to  be  "  thirty-five  cents  less 

The  price  may  be  made  to  corre-  than  St.  Louis  market  price  on  day 

.spond  with  the  fluctuations  in  the  of  delivery." 

197 


§  211.] 


LAW   OF   SALE. 


[BOOK   I. 


cient.1  So  a  contract  for  the  sale  of  goods  at  the  price  for  which 
the  manufacturers  should  sell  similar  articles  at  a  given  time 
in  the  following  year,  affords  a  specific  means  by  which  the 
price  may  be  ascertained.2  And  so  of  a  contract  to  sell  at  the 
same  rate  which  the  seller  gives  to  the  buyer's  neighbors.3 

§  211. Dependent  on  subsequent  acts  or  events.— The 

amount  may  also  be  made  to  depend  upon  subsequent  events 
or  conditions,  being  fixed  at  one  price  if  a  certain  event  hap- 
pens, and  at  a  different  price  if  that  event  does  not  happen.4 
But  an  executory  contract  to  sell  ore  at  a  price  to  be  deter- 
mined by  that  which  the  vendee  might  subsequently  receive 
upon  a  resale  of  it  has  been  held  insufficient  to  pass  the  title.5 
So  an  agreement  to  pay  "  as  much  as  any  one  else  would  pay  " 
has  been  held  too  uncertain  to  sustain  an  action  for  specific 
performance.6  And  an  agreement  for  the  sale  of  ice  at  a  price 
which  would"  yield  the  seller  a  net  profit  not  to  exceed  one 
dollar  per  ton  has  been  held  void  for  uncertainty.7 


iMcBride  v.  Silverthorne,  supra; 
Phifer  v.  Erwin,  100  N.  C.  59,  6  S.  E.  R. 
672.  To  same  effect:  Daniel  v.  Han- 
nah (1898),  106  Ga.  91,  31  S.  E.  R  734. 

A  contract  to  pay  the  seller  of  logs 
"the  most  that  he  could  get  offered 
in  money  for  them  delivered  at  Jack- 
son, when  measured,"  is  sufficient. 
Hagins  v.  Combs  (1897),  102  Ky.  165, 
43  S.  W.  R  222.  And  so  is  a  contract 
to  sell  at  the  "  lowest  jobbing  prices." 
Beardsley  v.  Smith,  61  111.  App..  340. 

2  Lund  v.  McCutchen,  83  Iowa,  755, 
49  X.  W.  R  998. 

3  Ashcroft  v.Butterworth,136  Mass. 
511. 

4  As  in  Newell  v.  Smith,  53  Conn. 
72,  where  the  price  of  a  cow  was 
fixed  at  $100  if  she  proved  then  to  be 
with  calf,  but  only  §40  otherwise. 
See  also  Brogden  v.  Marriott,  2  Bing. 
N.  C.  473,  29  Eng.  Com.  397. 

A  provision  in  a  contract  for  the 
sale  of  goods  to  be  delivered  at  dif- 
ferent times,  that  "  if,  during  the  de- 


liveries on  this  contract,  the  price 
should  be  below  the  price  herein 
named,  we  agree  to  rebate  such  dif- 
ference on  deliveries  so  affected,"  the 
words  "  the  price  "  mean  the  market 
price.  Wing  v.  Wadhams  Oil  Co. 
(1898),  99  Wis.  248,  74  N.  W.  R  819. 

5  Foster  v.  Lumbermen's  Mining 
Co.,  68  Mich.  188. 

6  Gelston  v.  Sigmund,  27  Md.  334. 
But  see  Hagins  v.  Combs,  supra. 

7  Buck  master  v.  Consumers'  Ice 
Co.  (1874),  5  Daly  (N.  Y.),  313. 

In  Daniel  v.  Hannah  (1898),  106  Ga. 
91,  31  S.  E.  R  734,  a  sale  of  cotton 
was  made,  stipulating  that  the  price 
should  be  "the  highest  market  price 
in  Thomaston  for  the  cotton  on  No- 
vember 10,  1896."  Held,  that  "the 
fact  that  the  pi-ice  of  the  cotton  was 
to  be  ascertained  subsequently,  by 
the  condition  of  the  market  at  a  par- 
ticular place  does  not  affect  the  va- 
lidity or  completeness  of  the  sale." 

In  Deyo  v.  Hammond  (1894),  102. 


198 


Cfl,  v.] 


OF   THE    PKICE. 


[§  212. 


g  212.  Price  to  be  fixed  by  valuers. —  It  is  also  compe- 
tent for  the  parties  to  provide  that  the  price  shall  be  such  as 
may  thereafter  be  fixed  by  valuers,1  and  in  case  it  is  so  fixed 
they  are  as  much  bound  by  it  as  if  they  had  fixed  it  themselves.2 
The  values  may  properly,  and  perhaps  under  the  statute  of 
frauds,  in  some  cases,  should,  be  named  in  the  agreement ;  but  if 
the  valuers  are  appointed  and  act,  this  ordinarily  is  sufficient.3 

Mich.  122,  60  N.  W.  R.  455.  plaintiff    price  so  fixed,  even  though  the  party 


sold  a  mare  to  the  defendant  under 
an  agreement  that  if,  in  a  test  to  be 
made  within  ninety  days,  the  mare 
could  trot  as  fast  as  one  owned  by  the 
defendant,  an  additional  price  was 
to  be  paid.  The  test  was  not  made, 
owing  to  the  sickness  of  one  mare 
and  the  lameness  of  the  other,  both 
having  been  in  the  defendant's  pos- 
session during  the  ninety  days.  Held, 
that  the  defendant  was  nevertheless 
liable  to  pay  the  extra  price,  it  being 
shown  from  other  sources  that  plaint- 
iff's mare  was  several  seconds  faster 
than  defendant's  mare. 

In  Lilienthal  v.  Suffolk  Brewing  Co. 
(1891),  154  Mass.  185,28  N.  K  R.  151,  a 
sale  of  hops  was  made  for  a  certain 
price,  with  the  condition  that  if  the 
purchaser  subsequently  found  it  was 
not  the  market  price  the  sale  should 
be  void.  Held,  that  there  was  a  pres- 
ent sale  upon  condition  subsequent. 

1  That  such  an  appraisement  is  not 
an  arbitration,  and  that  the  parties 
are  not  entitled  to  notice  of  hearing, 
and  that  the  appraisal,  unless  fraudu- 
lent, is  conclusive,  see  Norton  v.  Gale, 
95  111.  533,  35  Am.  R.  173,  citing  many 
cases.  See  also  Stose  v.  Heissler,  120 
111.  433,  11  N.  E  R.  161,  60  Am.  R. 
563.  In  New  England  Trust  Co.  v. 
Abbott,  162  Mass.  148,  38  N.  E  R.  432, 
the  court  say:  "  It  is  settled  that  one 
may  agree  to  sell  his  property  at  a 
price  to  be  determined  by  another, 
and  that  he  will  be  bound  by  the 


establishing  it  was  interested,  pro- 
vided the  interest  was  known,  and  no 
objection  was  made  by  the  parties, 
and  no  fraud  or  bad  faith  is  shown 
Brown  v.  Bellows.  4  Pick.  179,  189 
Palmer  v.  Clark,  106  Mass.  373,  389 
Haley  v.  Bellamy,  137  Mass.  357 
359;  Fox  v.  Hazel  ton,  10  Pick.  275 
Strong  v.  Strong,  9  Cush.  560,  569 
Benjamin  on  Sales,  §  88,  note  3." 

2  Wilcox  v.  Young,  66  Mich.  687. 

3  In  Brown  v.  Bellows,  4  Pick. 
(Mass.)  179,  it  is  said:  "The  first  ob- 
jection is  that  the  writing  declared 
upon  is  void  by  the  statute  of  frauds, 
inasmuch  as  it  purports  to  be  a  con- 
tract concerning  the  sale  of  real  es- 
tate, and  is  to  be  partly  made  out  by 
parol  evidence,  for  that  the  referees 
are  not  named  in  the  instrument, 
but  it  depends  wholly  upon  parol  evi- 
dence to  prove  who  were  chosen  to 
be  the  referees.  What  weight  might 
originally  have  attached  to  this  sug- 
gestion it  is  not  necessary  to  decide, 
because  the  contract  has  been  per- 
formed in  this  respect.  The  parties 
were  satisfied  with  the  appraisers, 
and  attended  upon  them  during  their 
appraisal.  It  is  too  late  for  either  now 
to  object  that  it  cannot  be  legally 
known  who  were  chosen  for  that  pur- 
pose. The  parties  could  not  have  con- 
ducted themselves  as  they  did,  in  this 
respect,  unless  on  account  of  the 
agreement,  and  so  far  in  perform- 
ance of  the  same." 


199 


§§  213,  214.] 
213. 


LAW   OF    SALE. 


[BOOK   I. 


-.  But  in  order  that  the  contract  shall  take  effect 
it  is  essential  that  the  price  shall  be  fixed  as  provided  in  the 
agreement;  for  if  the  parties  fail  to  appoint  valuers,  or  the 
latter  fail  or  refuse  to  act,  the  contract,  if  executory,  must  fail, 
and  unless  the  contrary  intention  appears  the  title  will  not 
pass,1  even  though  the  failure  in  the  valuation  should  be  caused 
by  one  of  the  parties.2  Where,  however,  the  goods  have  been 
delivered,  and  the  vendee  has  prevented  the  valuation  by  con- 
suming or  disposing  of  the  goods  before  the  valuation  has  taken 
place,  he  will  be  liable  for  their  reasonable  worth.3 

§  214.  Payment  of  the  price. —  The  question  of  the  payment 
of  the  price;  when  it  is  due;  where,  how  and  to  whom  it  is  to 
be  paid;  in  what  medium,  and  the  like;  and  the  question  of 
payment  in  specific  articles,  are  matters  reserved  for  treatment 
in  a  later  chapter  upon  the  generaL  subject  of  "  Payment." 4 


1  In  Fuller  v.  Bean,  30  N.  H.  290.  the 
question  was  whether  certain  goods 
had  been  sold,  so  that  the  title  passed, 
in  an  interview  between  Fuller  and 
one  Felton  at  Concord.  When  the 
parties  separated  at  Concord  the  price 
had  not  been  fixed,  but  they  agreed 
that  it  should  be  fixed  by  one  Neal, 
who  did  fix  it  the  next  day.  Said 
the  court:  "The  bargain  was  that 


noluerit  vel  non  potuerit  pretium 
definire  tunc  pro  nihil o  esse  venditio- 
nem.  Inst.  3,  23;  Poth.  de  Vente, 
pt.  1,  art.  2,  sec.  2.  That  appraisal  re- 
mained to  be  made.  It  was  an  act 
to  be  done  before  the  property  could 
pass  to  Fuller,  unless  it  could  be 
fairly  inferred  from  the  evidence 
relative  to  the  agreement  that  it  was 
the  understanding  of  the  parties  that 


Neal  should  appraise  the  goods,  and    the  property  should  nevertheless  pass 
that  Fuller  should  pay  for  them  at    at  once." 


the  rate  of  seventy-five  per  cent,  of 
the  appraisal,  one  half  by  his  own 
note  and  the  other  half  by  J.  G.  Ful- 
ler's note  and  cash.  Now  a  price  is 
essential  to  a  contract  of  sale.  Nulla 
emptiosine pretio  essepotest;  though 
if  the  price  can  be  made  certain  it  is 
sufficient.  Just.  Inst.  3,  23:  4  Kent's 
Com.  463,  477:  Poth.  de  Vente,  p.  1, 
sec.  1,  p.  3.  When  the  parties  then 
separated  and  Fulton  returned  to 
Boston  the  sale  was  incomplete.  It 
was  at  that  time  contingent  whether 
Neal  would  make  an  appraisal,  with- 
out which  there  would  be  no  sale. 
Sin  autem  ille  qui  nominatus  est  vel 


2  Thurnell  v.  Balbirnie,2  Mees.&  W. 
786;  Vickers  v.  Vickers,  L.  R.  4  Eq. 
529;  Milnes  v.  Gery,  14  Ves.  400. 

3  Clarke  v.  Westrope,  18  Com.  B. 
765,  86  Eng.  Com.  L.  764;  Humaston 
v.  Telegraph  Co.,  20  Wall.  (U.  S.)  20 
[citing  Inchbald  v.  Western  Planta- 
tion Co.,  17  Com.  B.  (N.  S.)  733;  Hall 
v.  Conder,  2  id.  53:  United  States  v. 
WTilkins,  6  Wheat.  (U.  S.)  135;  Ken- 
niston  v.  Ham,  9  Fost.  (N.  H.)  506; 
Holliday  v.  Marshall,  7  Johns.  (N.  Y.) 
211;  Cowper  v.  Andrews,  Hobart,  40, 
43];  Albemarle  Lumber  Co.  v.  Wil- 
cox, 105  N.  C.  34. 

4  See  post,  §  1404  et  seq. 


200 


CHAPTER  YI. 

OF  THE  CONTRACT  OF  SALE  — IN  GENERAL. 


§  215.  Purpose  of  this  chapter. 

216.  Of  the  contract  in  general. 

I.  Of  Mutual  Assent. 

217.  Necessity  of  mutual  assent. 

218.  Assent  need  not  be  express. 

219.  Assent  must  be  mutual,  un- 

conditional and  co-existent. 
220-223.  Mere     negotiations     not 

amounting    to    proposition 

and  acceptance. 
224, 225.  Mere   announcements  or 

price  lists  not  offers. 

226.  Off«r  must  be  accepted. 

227,  228.  Offer  must  be  accepted  as 

made. 
229.  Counter-proposition    operates 

as  a  rejection. 
230, 231.  What     constitutes 

such  counter-proposition. 

232.  If  counter-proposition  ac- 
cepted, contract  results. 

233.  Original  proposition  not 

open  to  acceptance  after  re- 
jection by  counter-proposi- 
tion. 

234.  Terms  of  sale  must  be  fully 

agreed  upon. 
235-237.  Negotiations    in  contem- 
plation of  more  formal  con- 
tract. 

238.  Acceptance  must  be  commu- 

nicated. 

239.  Manner  of  accepting. 

240.  What  constitutes. 

241-243.  Acceptance  by  con- 
duct. 

244,  245.  Time  of  acceptance. 


§  246.  Question  of  acceptance,  how 
determined. 

247.  Communication  by  mail,  tele- 
graph, etc. 

248-250.  Method  of  acceptance 

in  these  cases. 

251.  Time  of  acceptance  in 

these  cases. 

252.  Right  to  withdraw  offer. 

253.  Voluntary  offer  may  be 

withdrawn,    though    time 
given  for  its  acceptance. 

254.  Voluntary  offer  may  be 

revoked,    though    declared 
"  irrevocable." 

255.  Unaccepted  offer  not  such 

a  contract  as  excludes  parol 
evidence. 

256.  Agreement  for  consider- 
ation not  to  withdraw  offer. 

257.  How  offer  revoked. 

258.  Mailing  letter,  etc.,  not 

enough. 

259.  Offer  under  seal. 

260.  Lapse  of  offer  —  Notice. 

261.  Waiver  of  revocation. 

262.  Withdrawal  of  acceptance. 
IL  Unilateral  Contracts. 

263.  264.  Unilateral  contracts. 

III.  Of  the  Effect  of  Mistake  in 
Making  the  Contract. 

265.  Mistakes  of  parties  in  making 

the  contract. 

266.  Mistake  as  to  nature  of  trans- 

action. 
267-269.  Mistake  as  to  identity  of 
party. 


201 


§§  215,  216.] 


LAW    OF    SALE. 


[BOOK   I. 


§  270.  Mistake  regarding  the  thing 
sold. 

271.  Existence  of  thing  sold. 

272.  Identity  of  thing  sold. 

273.  Unknown  articles  con- 
tained or  concealed  in  thing 
sold. 

274.  Mistake  as  to  quantity. 


275,  27G.  Mistake  as  to  kind, 

quality  or  character. 

277.  Mistake  as  to  location. 

278.  Mistake  as  to  terms  of  con- 

tract —  Price. 

279.  Mistake  as  to   possibility  of 

performance. 


§  215.  Purpose  of  this  chapter. —  Sale  being  a  transfer  of 
the  title  to  goods  in  pursuance  of  a  valid  agreement  to  that 
effect,  it  is  obvious  that  a  question  which  demands  early  atten- 
tion is,  What  bargainings  between  parties  will  suffice  to  indi- 
cate their  assent  to  a  transfer  of  the  title  ? 

Ordinarily  this  must  be  a  question  depending  upon  the  gen- 
eral principles  of  contract,  and  it  might  be  safe  and  proper, 
perhaps,  to  leave  the  consideration  of  this  aspect  of  contracts 
to  the  writers  upon  that  general  subject.  A  review,  however, 
of  the  leading  principles  applicable  to  this  particular  phase  of 
that  greater  subject  may  not  be  thought  to  be  inappropriate, 
and  will  be  attempted  here. 

So  much  of  the  subject  as  is  unaffected  by  the  statute  of 
frauds  will  be  dealt  with  in  this  chapter,  and  the  application  of 
that  statute  will  be  the  subject-matter  of  the  following  chapter. 


§  216.  Of  the  contract  in  general. —  Except  as  it  is  affected 
by  the  statute  of  frauds,  there  is  nothing  in  the  rules  governing 
the  formation  of  the  contract  of  sale  which,  requires  that  that 
contract  shall  be  made  in  any  particular  manner  or  in  any 
particular  form.  Competent  parties  are  required  — and  the  ques- 
tion of  their  competency  has  already  been  considered ;  and  there 
is  required  the  assent  of  the  parties  that  the  title  to  a  specific 
chattel  shall  pass  from  one  party  and  vest  in  the  other.  This 
matter  of  assent  or  agreement,  therefore,  seems  to  be  the  one 
which  logically  falls  next  in  order  for  consideration ;  and  the 
formal  rule  may  be  stated,  as  an  introduction  to  the  general 

subject,  thus  — 

J      '  203 


CH.  VI.J  CONTRACT   OF    SALE  —  IN    GENEKAL.        [§§  217-219. 

I. 

Of  Mutual  Assent. 

§  217.  The  necessity  of  mutual  assent. —  To  the  making  of 
the  perfect  contract  of  sale,  as  to  the  making  of  every  other 
contract,  it  is  indispensable  that  there  should  be  the  mutual 
assent  of  the  parties  to  the  subject-matter  of  the  contract.  And 
in  this,  as  in  other  cases,  it  is  essential  that  the  minds  of  the 
parties  shall  meet, —  that  they  shall  both  assent  to  the  same 
thing  and  in  the  same  sense. 

Hence  until  there  is  a  clearly-defined  offer  on  the  one  side  to 
sell,  and  a  definite  acceptance  of  that  offer  on  the  other,  there 
can  be  no  sale,  and  the  title  will  not  pass  even  though  the 
property  be  delivered.1 

But,  to  quote  the  language  of  Mr.  Benjamin:2 — 

§218.  The  assent  need  not  be  express. —  "The  assent  of 
the  parties  to  a  sale  need  not  be  express.  It  may  be  implied 
from  their  language3  or  from  their  conduct;4  may  be  signified 
by  a  nod  or  a  gesture,5  or  may  be  inferred  from  silence  in  cer- 
tain cases;  as  if  a  customer  takes  up  wares  off  a  tradesman's 
counter  and  carries  them  away,  and  nothing  is  said  on  either 
side,  the  law  presumes  an  agreement  of  sale  for  the  reasonable 
worth  of  the  goods." 6 

§  219.  Assent  must  be  mutual,  unconditional  and  co-exist- 
ent.—  "But,"  continues  Mr.  Benjamin,  "the  assent  must,  in 
order  to  constitute  a  valid  contract,  be  mutual  and  intended  to 

1  Utley  v.  Donaldson,  94  U.  S.  29,  47 ;  a  draft  of  a  proposed  agreement, 
Gardner  v.  Lane,  12  Allen  (Mass.),  89;  which  was  intended  to  form  the 
Summers  v.  Mills,  21  Tex.  77.  basis  of  a  formal  contract,  to  be  after- 

2  Benjamin  on  Sale,  £  38.  wards  executed  by  them  both." 

3  Citing  Joyce  v.  Swann,  17  C.  B.  5  The  fall  of  the  hammer  at  an  auc- 
(N.  S.)  84,  "  a  curious  case  of  what  tion  sale,  the  nod  of  the  bidder,  and 
one  of  the  judges  termed  a  '  grum-  the  like,  are  familiar  instances  of 
bling '  assent."  this. 

4  Citing  Brogden  v.  Metropolitan  6  Citing  Black.  Com.,  Bk.  II,  ch.  30, 
Ry.  Co.,  2  App.  Cas.  666,  "  where  the  p.  443;  Hoadley  v.  McLaine,  10  Bing. 
parties  had  acted  upon  the  terms  of  482,  per  Tindal,  C.  J. 

203 


§  220.]  LAW    OF    SALE.  [BOOK    I. 

bind  loth  sides.  It  must  also  co-exist  at  the  same  moment  of 
time.  A  mere  proposal  by  one  man  obviously  constitutes  no 
bargain  of  itself.  It  must  be  accepted  by  another,  and  this 
acceptance  must  be  unconditional.  If  a  condition  be  affixed 
by  the  party  to  whom  the  offer  is  made,  or  any  modification 
or  change  in  the  offer  be  requested,  this  constitutes  in  law  a  re- 
jection of  the  offer,  and  a  new  proposal,  equally  ineffectual  to 
complete  the  contract  until  assented  to  by  the  first  proposer. 
Thus,  if  the  offer  by  the  intended  vendor  be  answered  by  a 
proposal  to  give  a  less  sum,  this  amounts  to  a  rejection  of  the 
offer,  which  is  at  an  end,  and  the  party  to  whom  it  was  made 
cannot  afterwards  bind  the  intended  vendor  by  a  simple  ac- 
ceptance of  the  first  offer." 

§  220.  Mere  negotiations  not  amounting  to  proposition 
and  acceptance. —  Mere  negotiations  which  do  not  ripen  into 
an  offer,  on  one  side,  and  an  acceptance  of  that  offer  as  made, 
on  the  other  side,  do  not  amount  to  a  contract  of  sale.  This 
is  very  clearly  put,  in  a  leading  case,1  by  Sergeant,  J.,  as  fol- 
lows: "It  is  incumbent  on  a  party  suing  to  recover  damages 
for  breach  of  contract  to  make  out  a  clear  case  of  some  mat- 
ter or  thing  mutually  assented  to  and  agreed  upon  by  the  par- 
ties to  the  alleged  contract.  When  the  agreement  is  in  writ- 
ing, signed  and  executed  by  the  parties,  their  assent  to  all  that 
is  contained  in  it  is  no  longer  a  matter  of  dispute;  the  ques- 
tions which  arise  in  such  a  case  are  of  a  different  character. 
But  when  it  is  epistolary,  consisting  of  a  series  of  letters  con- 
taining inquiries,  propositions  and  answers,  it  is  necessary  that 
some  point  should  be  attained  at  which  the  distinct  proposi- 
tion of  the  one  party  is  unqualifiedly  acceded  to  by  the  other, 
so  that  nothing  further  is  wanting  on  either  side  to  manifest 
that  aggregatio  mentium  which  constitutes  an  agreement,  and 
that  junction  of  wills  in  the  same  identical  matter,  offered  on 
one  side  and  concurred  in  by  the  other,  bringing  everything  to 
a  conclusion,  which  in  contemplation  of  law  amounts  to  a  con- 
tract.    If  a  proposition  be  made  by  one  man  to  another  to 

1  Slaymaker  v.  Irwin,  4  Whart.  (Pa.)  369. 

20  i 


OH.  VI.]  CONTRACT    OF    SALE IN   GENERAL.  [§  2lU. 

purchase  an  article  from  him  at  a  certain  price  and  on  certain 
terms,  which  is  accepted  as  offered,  there  is  then  an  agreement 
or  contract.  But  if,  instead  of  accepting  it,  the  party  declines 
so  doing,  and  then  new  terms  of  purchase  are  offered,  the  as- 
sent is  vet  to  be  given  by  the  other  to  the  terms  thus  varied. 
It  is  not  a  contract  —  it  is  the  suggestion  or  proposal  of  a  new 
subject  of  contract,  on  which  the  first  party  has  again  a  right 
to  pause,  to  consider,  to  accept,  to  reject,  to  suggest  new  terms; 
and  all  is  in  the  meantime  merely  negotiation.1' 

§  221.  .  In  a  case1  often  cited  it  appeared  that  A  wrote 

to  B  as  follows:  "Say  how  many  white,  colored  and  woolen 
rags  you  have  on  hand,  and  your  prices  for  them.'''  B  replied : 
"I  have  about  a  ton  each,  white  and  colored  rags,  and  my 
prices  are  three  and  one-half  cents  for  colored  and  seven  cents 
for  white."  A  replied:  -  I  will  take  the  rags  at  the  price  you 
name."  B  made  no  written  reply,  but  there  was  evidence 
tending  to  show  a  subsequent  oral  agreement  by  him  to  de- 
liver the  rags,  which  he  afterwards  refused  to  do.  Said  ftfet- 
calf,  .J.:  "The  evidence  introduced  l.y  the  plaintiffs  at  the  trial 
failed  to  prove  that  the  defendants  made  the  contract  with 
them  for  the  breach  of  which  their  action  was  brought.  That 
evidence  consisted  of  three  letters.  The  first  was  from  the 
plaintiffs  to  the  defendants,  merely  inquiring  what  were  the 
quantity  and  price  of  rags  which  they  had  on  hand.  The  sec- 
ond was  the  defendants'  reply  to  the  first,  merely  stating  the 
quantity  of  rags  which  they  had,  and  the  price  thereof.  Thus 
far  there  was  no  offer  of  one  party  to  buy,  nor  of  the  other 
party  to  sell.  The  third  letter  was  from  the  plaintiffs,  saying 
to  the  defendants  that  they  would  take  the  rags  at  the  price 
which  the  defendants  had  named.  This  was  the  first  offer  in 
the  case,  and  this  offer  the  defendants  never  accepted  in  writ- 
ing. And  an  oral  acceptance,  if  they  had  made  it,  would  not 
have  bound  them;  the  case  being  within  the  statute  of  frauds, 
no  part  of  the  rags  having  been  accepted  and  received  by  the 
plaintiffs,  and  nothing  having  been  given  by  them  in  earnest 

1  Smith  v.  Gowdy,  8  Allen  (Mass.),  5G6. 
203 


§§  222-224.]  law  of  sale.  [book  i. 

to  bind  the  bargain,  or  in  part  payment.  It  is  clear,  therefore, 
that  no  contract  was  completed,  there  having  been  no  assent 
to  a  sale  by  the  union  of  both  parties'  minds." 

§  222.  .  So,  in  a  recent  case,1  it  appeared  that  the  plaint- 
iff, Ahearn,  asked  one  member  of  defendants'  firm  how  much 
they  were  paying  for  stave-bolts,  and  was  told  that  defendants 
would  take  all  he  could  make  and  deliver  at  $2  per  cord. 
Plaintiff  made  a  lot  of  bolts,  which  he  proposed  to  furnish  to 
defendants,  but  they  denied  any  bargain.  Ahearn  sued  them 
for  not  accepting  the  bolts.  Said  the  court:  "There  was  no 
contract  made  out.  Ahearn  did  not  inform  defendants  that  he 
would  accept  or  act  on  their  order,  or  deliver  any  bolts,  or,  if 
any,  how  many.  The  transaction  went  no  further  than  what 
occurs  when  any  one  asks  another  what  he  will  either  give  or 
take  for  commodities.  Such  inquiries  may  lead  to  bargains, 
but  do  not  make  them." 

§  223.  .  So,  again,2  plaintiff  inquired  of  defendant  the 

price  of  certain  steers  belonging  to  the  latter.  Defendant 
wrote  in  reply :  "  I  could  not  give  you  a  close  price  on  the 
steers,  on  account  of  not  seeing  them  for  a  while,  but  they 
ought  to  be  worth  $4.25.  ...  Go  see  them."  Plaintiff 
went  to  see  them,  and  wrote  that  he  would  take  them  at  the 
price  named,  but  defendant  sold  them  elsewhere.  In  an  action 
by  plaintiff  for  breach  of  an  alleged  contract  of  sale,  it  was 
held  that  defendant's  letter  did  not  constitute  an  offer,  and 
that  there  was  therefore  no  contract  between  the  parties. 

§  224.  Mere  announcement  to  traders  or  price-list  is  not 
an  otter  to  sell  such  goods  as  may  be  ordered. —  So  a  mere 
advertisement  or  announcement  of  goods  for  sale,  or  a  price- 
list  or  circular  calling  the  attention  of  prospective  purchasers 
to  goods  or  prices,  or  a  mere  offer  to  sell  goods  generally,  does 
not  constitute  an  offer  to  sell  such  goods  as  may  be  ordered  at 

i  Ahearn  v.  Ayres,  38  Mich.  692.  2Patton  v.  Arney  (1895),  95  Iowa, 

6G4,  64  N.  W.  R.  635. 
206 


CH.  VI.] 


CONTRACT    OF    SALE IN    GENERAL. 


[§  224. 


the  prices  named.1  Thus,  in  a  leading  case,2  it  appeared  that 
the  defendants  wrote  to  the  plaintiff  saying:  "We  are  author- 
ized to  offer  Michigan  fine  salt  in  full  car-load  lots  of  eighty 
to  ninety-five  bbls.,  delivered  in  your  city  at  eighty-five  cents 


i  Moulton  v.  Kershaw,  59  Wis.  816, 
18  N.  W.  R.  172,  48  Am.  R.  516; 
Beaupre  v.  Telegraph  Co.,  21  Minn. 
155;  Kinghorne  v.  Telegraph  Co.,  18 
U.  C.  Q.  B.  60;  Schenectady  Stove 
Co.  v.  Holbrook,  101  N.  Y.  45,  4  N.  E. 
R.  4. 

2  Moulton  v.  Kershaw,  supra,  dis- 
tinguishing Keller  v.  Ybarru,  3  Cal. 
147. 

In  Beaupre  v.  Telegraph  Co.,  21 
Minn.  155,  supra,  it  appeared  that 
the  plaintiffs,  merchants  in  St.  Paul, 
wrote  to  R.,  a  wholesale  dealer  in 
pork  at  Dubuque,  "  Have  you  any 
more  Northwestern    mess   pork,  or 
prime  mess?    Also  extra  mess;  tele- 
graph price  on  receipt  of  this."    R. 
telegraphed    in    reply:   "Letter   re- 
ceived.    No  light  mess  here.     Extra 
mess    twenty-eight    seventy-five 
($28.75)."    On  July  15,  the  plaintiffs, 
having  received  R.!s  dispatch,  deli  v. 
ered  to  the  defendant  at  St.  Paul,  at 
about  6  o'clock  P.  M.,  the  following 
message  addressed  to  R.,  with  a  re- 
quest to  forward  it  without  delay: 
"  Dispatch  received.    Will  take  two 
hundred  extra  mess,  price  named." 
Held,  that  the  letter  and  telegrams 
did  not  constitute  a  contract.     Tiie 
court  said:  "The  plaintiffs,  in  their 
complaint,  treat  Ryan's  dispatch  as 
an  offer  to  sell  such  quantity  of  pork 
as  they  might  order,  at  the  price 
therein  named,  and  their  own  mes- 
sage as  an  acceptance  of  such  offer, 
and  an  agreement  on  their  part  to 
take  two  hundred  barrels    at  that 
price.    If  such  were  the  character  of 
these  dispatches,  then  the  plaintiffs' 


message,    if    seasonably     delivered, 
would  have  effected  a  valid  execu- 
tory contract  of  sale,  by  which  Ryan 
would  be  bound  to  furnish  the  pork 
contracted  for,  at  the  contract  price. 
.    .    .     But  neither  Ryan's  dispatch 
nor  the  plaintiffs'  message  will  bear 
the  construction  put  upon  it  in  the 
complaint.     The  plaintiffs  had  writ- 
ten to  Ryan,  inquiring  if  he  had  any 
more  pork  of  certain  kinds,  and  re- 
questing him  to  "telegraph  price  on 
receipt  of  this."    Ryan  accordingly 
telegraphed  as  follows:  "Letter  re- 
ceived.    No  light  mess  here.     Extra 
mess    twenty-eight    seventy-five 
($28.75>M    Upon  receipt  of  this  dis- 
patch, the  plaintiffs  sent  this  mes- 
sage, which  the  defendant  neglected 
to  deliver  in  due  season:  "Dispatch 
received.    Will  take  two    hundred 
extra   mess,  price  named."    Ryan's 
dispatch  did  not  purport  to   be  an 
offer  to  sell  any  quantity  of  pork 
whatever,  nor  was  the  plaintiffs'  mes- 
sage an  acceptance  of  any  offer.  The 
seasonable  delivery  of  plaintiffs'  mes- 
sage to  Ryan  would  not  have  ef- 
fected any  contract  binding  him  to 
deliver  to  the  plaintiffs  two  hundred 
barrels,  at  the  price  named.    Ryan's 
dispatch  was  rather  (as  seems  to  be 
admitted  by  the  plaintiffs  in  their 
printed  argument)   a  quotation    of 
the  market  price  of  pork,  or  perhaps 
a  statement  of  the  price  at  which  he 
held  his  own  pork;  and  the  plaint- 
iffs' message  was  an  offer  to  take  two 
hundred  barrels  at  the  price  named— 
a  mere  order  for  goods,  which  Ryan 
might  accept  or  reject  at  his  pleas- 


207 


§  225.]  LAW    OF    SALE.  [BOOK   I. 

per  bbl."  The  plaintiff  telegraphed:  "Your  letter  of  yester- 
day received  and  noted.  You  may  ship  me  2,000  bbls.  of 
Michigan  fine  salt  as  offered  in  your  letter."  The  court  held 
that  the  letter  did  not  constitute  an  offer  of  sale.  Said  the 
court :  "  We  place  our  opinion  upon  the  language  of  the  letter 
of  the  appellants,  and  hold  that  it  cannot  be  fairly  construed 
into  an  offer  to  sell  to  the  respondent  any  quantity  of  salt  he 
might  order,  nor  any  reasonable  amount  he  might  see  fit  to 
order.  The  language  is  not  such  as  a  business  man  would  use 
in  making  an  offer  to  sell  to  an  individual  a  definite  amount 
of  property.  The  word  '  sell '  is  not  used.  They  say, '  We  aro 
authorized  to  offer  Michigan  fine  salt,'  etc.,  and  volunteer  an 
opinion  that  at  the  terms  stated  it  is  a  bargain.  They  do  not 
say  we  offer  to  sell  to  you.  They  use  the  general  language 
proper  to  be  addressed  generally  to  those  who  were  interested 
in  the  salt  trade.  It  is  clearly  in  the  nature  of  an  advertise- 
ment or  business  circular  to  attract  the  attention  of  those  in- 
terested in  that  business  to  the  fact  that  good  bargains  in  salt 
could  be  had  by  applying  to  them,  and  not  as  an  offer  by  which 
they  were  to  be  bound,  if  accepted,  for  any  amount  the  per- 
sons to  whom  it  was  addressed  might  see  fit  to  order.  We 
think  the  complaint  fails  to  show  any  contract  between  the 
parties." 

§  225.  .  So  in  a  recent  case  in  Massachusetts1  it  is  said: 

"  A  contract  is  an  agreement  which  creates  an  obligation.  If 
a  person  writes  to  a  merchant,  '  At  what  price  will  you  fill  my 

ure,  and  until  his  acceptance  no  con-  ten  car-loads  as  per  your  quotation." 
tract  would  exist  between  the  par-  This  was  held  to  constitute  a  corn- 
ties."  plete  contract  from  which  the  seller 
But  this  rule  as  to  quotations  was  could  not  withdraw  by  telegraphing, 
held  not  to  apply  where  one  party  "Impossible  to  book  your  order, 
wrote  to  the  other,  "  Please  advise  Output  all  sold."  Fairmount  Glass 
us  the  lowest  price  you  can  make  us  Works  v.  Grun den-Martin  Wooden- 

on   our  order  for  ten  car-loads    of    ware  Co.  (1899), Ky.  — ,  51  S.  W. 

Mason  green  jars,"  and  the  other  re-  R.  196. 

plied,  "We  quote  you  Mason  fruit  lAshcroft     v.     Butterworth,     136 

jars"  at  certain  prices  "for  immedi-  Mass.  511.    See  also  Lincoln  v.  Erie 

ate  acceptance;"  to  which  the  first  Preserving  Co.,  132  Mass.  129. 
replied   by  telegraph,  "Enter  order 

203 


CH.  VI.]  CONTRACT    OF    SALE  —  IN    GENERAL.       [§§  220,  227. 

orders  for  goods?'  and  receives  in  writing  the  answer,  'I  will 
sell  you  at  die  same  rate  I  sell  your  neighbors,'  is  the  merchant 
bound  to  fill  any  order  or  any  reasonable  order  he  may  receive 
before  the  offer  is  revoked?  The  offer  is  not  certain,  or  capable 
of  beino-  made  certain,  in  regard  to  the  quantity  or  particular 
qualiuCsize  and  kind  of  goods  which  the  merchant  agrees  to 
sell  It  is  not  intended  to  bind  him  absolutely  to  sell  his  whole 
stock  or  any  specific  part  of  it  which  the  customer  may  order. 
It  does  not  contain  the  means  of  identifying  the  proper  y  he 
offers  to  sell.  It  expresses  a  general  willingness  to  sell  this 
customer,  out  of  his  stock,  at  the  same  price  at  which  he  sells 
another,  and  leaves  the  merchant  the  right  to  accept  or  reject 
any  particular  order." 

S  o»6    Offer  must  he  accepted  —  Mere  unaccepted  offer  not 
enough!-  So  clearly  a  mere  offer  on  the  one  side,  not  accepted 
on  the  other,  is  not  sufficient.     Thus,  B.,  C.  &  Co.,  the  defend- 
ants in  an  action/  wrote:  "We  agree  to  sell  It  one  million 
feet  of  Norway  (pine);     .     .     •     said  Norway  to  be  suitable 
for  making  square  timber,  and  will  make  a  contract  with  him 
givino-  him  the  right  to  go  on  said  lands  and  cut  and  remove 
said  Umber  on  payment  for  the  same.     The  price  of  said  Nor- 
way to  be,"  etc.     Said  the  court:  "  This  instrument  was  not  a 
contract.     It  was  simply  an  offer  to  make  one,  with  a  state- 
ment of  the  terms.     There  was  no  mutuality      It  was  the  act 
alone  of  the  defendants,  and  it  was  not  supported  by  any  duty 
or  obligation  of  the  plaintiff,  or  of  any  other  person,  or  by  any 
form  of  consideration  whatever,  and  there  was  no  averment  of 
acceptance  by  the  plaintiff.   There  is  no  appearance  of  a  cause 
of  action." 2 

s  227  Offer  must  be  accepted  as  made.— And  not  only 
must  the  offer  be  accepted,  but  it  must  be  accepted  as  made. 
Thus,  in  a  case  frequently  cited,3  it  appeared  that  the  defendant 

.  McDonald  v.  Bewick,  51  Mich.  79,  EL  693;  James  v.  W1^5R& 
1fi  v  w  R  oin  Ad.  1109;  Tucker  v.  Woods,  12  Johns. 

2CitIg  Governor,  etc.  v.  Fetch,  28    (N.  Y.)  190  7  Am.  Dec.  305;  Quick  v. 
Eng.  L.  &  Eq.  470;  Lees  v.  Whitcomb,    Wheeler,  78  N.  Y.  300. 
5  Bin-  34;  Sykes  v.  Dixon,  9  Ad.  &        3  Hutchison  v.  Bowker,  5  M.  &  W. 
°   u  209 


227.] 


LAW    OF    SALE. 


[book 


had  written  an  offer  to  sell  good  barley.  The  plaintiff  replied, 
accepting  the  offer,  but  adding,  "expecting  you  will  give  lis  fine 
barley  and  good  weight."  To  this  defendant  replied.  "  You  say 
you  expect  we  shall  give  you  '  line  barley.'  Upon  reference  to 
our  offer,  you  will  find  no  such  expression.  As  such,  we  must 
decline  shipping  the  same."  Good  barley  and  fine  barley  were 
shown  to  be  distinct  grades,  and  the  latter  was  the  heavier.  It 
was  therefore  held  that  there  had  been  no  acceptance  of  the 
offer  and  hence  no  contract. 

So  where  defendant  offered  to  buy  a  horse  if  warranted 
"  sound  and  quiet  in  harness,"  and  the  plaintiff  sent  the  horse 
with  a  warranty  that  it  was  "sound  and  quiet  in  double  har- 
ness," it  was  held  that  there  was  no  contract.1  Many  other 
cases  will  be  found  in  the  notes. 


535.  See  the  very  similar  case  of 
Myers  v.  Trescott,  59  Hun  (N.  Y.), 
395,  to  the  same  effect. 

i  Jordan  v.  Norton,  4  M.  &  W.  155. 

S.  wrote  to  J.  offering  to  sell  two 
hundred  boxes  of  cheese,  at  a  given 
price,  and  to  deliver  them  at  a  place 
designated,  '"one  hundred  now  and 
one  hundred  about  the  middle  of 
October  next."'  J.  wrote,  accepting 
the  offer  as  to  amount,  price  and 
place  of  delivery,  but  specifying 
other  times  of  delivery.  Held,  that 
the  two  letters  did  not  constitute  a 
contract.  Johnson  v.  Stephenson,  26 
Mich.  63. 

A  offered  to  sell  to  B  two  thou- 
sand to  five  thousand  tons  of  iron 
rails  at  terms  specified.  B  wrote 
back  directing  the  entry  of  an  order 
for  one  thousand  two  hundred  tons 
"  as  per  your  favor."  A  declined  to 
fill  this  order.  Held,  that  B's  order 
was  only  a  qualified  acceptance,  and 
hence  equivalent  to  a  rejection.  Min- 
neapolis, etc.  Ry.  Co.  v.  Columbus 
Rolling  Mills,  119  U.  S.  149. 

An  acceptance  of  an  offer  to  sell 


land,  but  fixing  a  different  place  for 
the  delivery  of  the  deed  and  the  pay- 
ment of  the  money  than  the  resi- 
dence of  the  parties  or  the  place 
named  in  the  offer,  is  not  such  an  un- 
conditional acceptance  as  will  bind 
the  seller.  Northwestern  Iron  Co.  v. 
Meade,  21  Wis.  480,  94  Am.  Dec.  557; 
Baker  v.  Holt,  56  Wis.  100,  14  N.  W. 
R.  8.  In  the  latter  case,  A  in  Con- 
necticut wrote  to  B  in  Wisconsin 
offering  to  sell  land  on  certain  terms, 
nothing  being  said  about  place  of 
payment  or  delivery  of  deed.  B 
wrote  saying  that  he  would  take  the 
land  on  the  terms  stated,  the  deed 
to  be  forwarded  to  a  certain  other 
place  in  Wisconsin  for  delivery  and 
payment.  B  also  telegraphed  A 
that  he  had  written  that  he  would 
take  the  land  at  A's  figures.  Before 
either  the  letter  or  the  telegram 
reached  A,  but  after  they  had  both 
been  sent,  A  wrote  withdrawing  his 
offer.  The  acceptance  by  the  tele- 
gram was  held  to  be  limited  by  con- 
ditions fixed  in  the  letter  of  accept- 
ance, and  as  the  letter  of  acceptance 


210 


€11    VI.] 


CONTRACT    OF    SALE IN    GENEEAL. 


[§  2-'S- 


«  228. .  The  rule  of  these  cases  was  well  illustrated  and 

stated  by  Graves,  J.,1  as  follows:  "If  in  answer  to  a  proposal 
to  grant  Black  Acre,  a  person  replies  that  he  is  ready  to  close 
the  matter  and  will  take  White  Acre,  there  is  no  acceptance. 


was  not  an  unconditional  accept- 
ance of  the  offer,  it  was  held  there 
was  no  sale. 

The  same  rule  was  also  enforced  in 
Weaver  v.  Burr,  31  W.  Va.  736,  3  L 
R.  A.  94,  8  S.  E.  R.  743. 

A  wrote  B  asking,  "  What  will  you 
sell  me  450  kegs  of  nails  for,  deliv- 
ered at  Bangor,  in  the  course  of  a 
month,  cash  down?"  B  replied,  "We 
will  sell  450  casks  common  assorted 
nails,  delivered  on  the  dock  at  Ban- 
gor, at  §3.02  per  keg  of  100  lhs.  each, 
cash."  A  replied.  "Nails  have  ad- 
vanced so  much  I  am  almost  afraid 
to  buy;  but  you  will  send  me  as  soon 
as  possible  303  kegs  (naming  the 
kinds),  and  I  will  send  you  a  check 
on  Exchange  Bank,  Boston."  Held, 
no  contract.  Jenness  v.  Iron  Co. 
(1864).  53  Mr.  20. 

A  offered  to  sell  goods  to  B  with  a 
credit  of  six  months  after  December 
15.  B  offered  to  pay  them  on  a  credit 
of  six  months  after  December  31.  A 
said  he  could  not  do  that:  B  said  he 
could  do  better.  Held,  do  sale,  though 
A  afterwards  sent  the  goods  which 
were  not  accepted,  (lowing  v. 
Knowles,  lis  Mass.  232. 

A  ordered  article  x  sent  to  him  by 
B.  saying  also,  "if  you  please  send 
me  "-article  y  "at  the  same  time." 
Held,  that  B  might  send  both  arti- 
cles x  and  y  or  x  alone,  but  not  y 
alone.  Virtue  v.  Beacham,  17  N.  Y. 
SuppL  450. 

A  made  offer  for  "  15  to  20  bales 
good,  new  hops  at  20  cents,  cash." 
B accepted  for  "  15  bales  new  hops,  Cor 


delivery  when  picked."  Held,  no  con- 
tract. ( 'alter  v.  Bingham.  32  Up.  Can. 
Q.  B.  61"). 

In  Griffin  v.  Gratwick  Lumber  Co. 
(1893),  97  Mich.  557,  56  N.  W.  R.  1034, 
it  appeared  thatthe  plaintiff  offered 
to  sell  to  the  defendant  a  quantity  of 
logs.  Defendant's  agent  promised  to 
go  the  next  day  and  examine  it,  but 
did  not  do  so.  Soon  after  part  of  the 
logs  were  destroyed  by  fire.  Later 
another  agent  of  the  defendant  wrote 
to  plaintiff  saying  defendant  would 
take  the  logs  at  the  price  named,  and 
would  send  a  man  to  scale  them,  but 
calling  attention  to  the  fact  that 
fires  had  been  raging  in  the  vicinity 
and  might  have  damaged  the  logs. 
In  an  action  for  the  price  of  the  logs 
as  at  the  date  of  the  offer,  it  was  held 
that  there  was  no  contract.  The 
promise  to  go  and  examine  the  logs 
was  not  an  .acceptance  of  the  offer  to 
sell,  and  the  later  letter  of  accept- 
ance was  clearly  qualified  by  the  con- 
dition that  if  the  logs  had  been  partly 
destroyed  (which  was  the  fact)  the 
defendant  did  not  accept  the  offer  as 
to  them. 

Immaterial  variation.— But  the 
variation  which  shall  amount  to  a 
rejection  must  be  really  a  variation. 
Thus,  where  there  was  an  offer  for 
the  sale  of  a  large  quantity  of  lard  to 
be  delivered  in  daily  instalments 
averaging  ten  thousand  pounds  each, 
and  the  offer  declared  the  "terms  of 
sale  cash,"  the  court,  though  not  de- 
ciding the  point,  questioned  whether 
an  acceptance  declaring,  "I  shall  pay 


»Eggleston  v.  Wagner,  4(3  Mich.  610,  620,  10  N.  W.  R.  37. 
211 


§  228.] 


LAW    OF    SALE. 


[book 


Neither  is  there  an  acceptance  where  executory  proceedings  on 
each  side  are  involved  in  the  proposal,  and  the  party  profess- 
ing to  accept  introduces  a  variance,  and  formulates  his  adoption 
of  the  offer  with  conditions  and  qualifications  which  essentially 
alter  some  of  the  constituents  or  materially  vary  the  effect.  In 
such  cases  no  contract  is  brought  into  existence.1 


bills  daily."  was  really  materially  dif- 
ferent. The  Court,  moreover,  held 
that  the  two  instruments  —  the  offer 
and  the  acceptance  —  must  be  read 
together  as  constituting  the  agree- 
ment,and  that  when  so  read, the  latter 
expression  explained  the  former  and 
left  no  inconsistency.  Anglo-Amer- 
ican Prov.  Co.  v.  Prentiss  (1895),  157 
111.  506,  42  N.  E.  R.  157. 

1  Citing  Kyle  v.  Kavanagh,  103 
Mass.  356,  4  Am.  R.  560;  Suydam  v. 
Clark,  2  Sandf.  (N.  Y.)  133;  National 
Bank  v.  Hall,  101  U.  S.  43;  Jordan  v. 
Norton,  4  M.  &  W.  155;  Hussey  v. 
Horne-Payne,  8  Ch.  Div.  670,  25  Eng. 
R.  561;  Tilley  v.  Cook  County,  103  U. 
S.  155. 

In  Potts  v.  Whitehead,  23  N.  J.  Eq. 
514,  it  is  said:  "An  acceptance,  to  be 
good,  must  of  course  be  such  as  to 
conclude  an  agreement  or  contract 
between  the  parties.  And  to  do  this, 
it  must  in  every  respect  meet  and 
correspond  with  the  offer,  neither 
falling  within  nor  going  beyond  the 
terms  proposed,  but  exactly  meeting 
them  at  all  points  and  closing  with 
them  just  as  they  stand ; "  citing 
Huddleston  v.  Briscoe,  11  Ves.  (Eng.) 
583;  Carr  v.  Duval,  14  Pet.  (U.  S.)  77; 
McKibbin  v.  Brown,  1  McCarter 
(N.  J.),  13;  s.  c,  2  id.  498;  Honeyman 
v.  Marryatt,  6  H.  L.  C.  112:  Routledge 
v.  Grant,  4  Bing.  653;  Kennedy  v. 
Lee,  3  Meriv.  441;  Hutchison  v. 
Bowker,  5  M.  &  W.  535;  Eliason  v. 
Henshaw,  4  Wheat.  (U.  S.)  225. 

In  the  case  of  Fulton  Bros.  v.  Upper 


Canada  Furniture  Co.,  9  Ontario  Ap- 
peal Reports,  1883-1884,  p.  211,  it  ap- 
peared that,  the  plaintiffs  having 
agreed  to  supply  the  defendant  with 
one  hundred  thousand  feet  of  lum- 
ber subject  to  inspection,  the  defend- 
ants in  a  subsequent  letter  assumed 
that  this  was  to  be  "American  in- 
spection," and  the  plaintiffs  an- 
swered: "  We  do  not  know  anything 
about  American  inspection,  but  will 
submit  to  any  reasonable  inspec- 
tion." No  formal  waiver  of  the  in- 
spection claimed  by  the  defendants 
was  made  by  them,  neither  was  there 
any  agreement  by  the  plaintiff  to 
submit  to  such  inspection.  It  was 
held  that  there  had  not  been  shown 
"a  clear  accession  on  both  sides  to 
one  and  the  same  set  of  terms,"  and 
that  a  concluded  agreement  had  not 
been  made  out  between  the  parties. 
Spragge,  O.  C.  J.,  said:  "The  rule 
as  to  making  out  a  contract  from 
correspondence  has  been  stayed  by 
many  of  the  judges  in  England,  and 
by  the  text- writers  on  the  Law  of 
Contracts,  including  Mr.  Benjamin's 
able  treatise  on  the  Sale  of  Personal 
Property.  Osier,  J.,  in  his  judgment 
in  the  court  below,  adopts  the  lan- 
guage of  Mr.  Pollock  (on  Contracts, 
3d  ed.  37):  'In  order  to  convert  a- 
proposal  into  a  promise  the  accept- 
ance must  be  absolute  and  unquali- 
fied. For  unless  and  until  there  is 
such  an  acceptance  on  the  one  part, 
of  terms  proposed  on  the  other  part, 
there  is  no  expression  of  one  and  the 


212 


en.  VI.] 


CONTRACT    OF    SALE  —  IN    GENERAL. 


[§  228. 


"In  order  to  convert  a  proposal  into  a  promise,  the  constitu- 
ents of  the  acceptance  tendered  must  comply  with  and  conform 
to  the  conditions  and  exigencies  of  the  proposal     The  accept- 
ance must  be  of  that  which  is  proposed  and  nothing  else,  and 
must  be  absolute  and  unconditional.     Whatever  the  proposal 
requires  to  fulfill  and  effectuate  acceptance  must  be- accom- 
plished, and  the  acceptance  must  include  and  carry,  with  it 
whatever  undertaking,  right  or  interest  the  proposal  calls  for 
and  there  must  be  an  entire  agreement  between  the  proposal 
and  acceptance  in  regard  to  the  subject-matter  and  extent  of 
the  interest  to  be  contracted." 

same  common  intention  of  the  par-    ticular  case  upon  the  language  em- 
tieTbnt  at  the  most  expressions  of    ployed;  and  a  deepen  upo« 

he  more  or  less  different  intentions  of  corresponde nee  my  taof  httfe 
of  each  partv  separately:  in  other  assistance  where  the  effect  of  an 
words,  proposals  and  counter-pro-  other  set  comes jn  question/^  See 
posals.'  There  must  be,  to  use  the 
language  of  Sir  J.  Knight  Bruce,  in 
Thomas  v.  Blackman,  1  Coll.  312,  'a 
clear  accession  on  both  sides  to  one 
and  the  same  set  of  terms.'  In  The 
Oriental  Inland  Steam  Co.  v.  Briggs, 
4  D.,  F.  &  J.  191.  Lord  Campbell 
spoke  emphatically  of  its  being  ex- 

tremely  desirable  -to  adhere  strictly 

to  the  rule  of  the  court  that  whoever 

brings  forward  a  contract,  as  consti- 

tuted  of  a  proposal  on  one  side  and 

an  acceptance  on  the  other,  should 

show  that  the  acceptance  is  prompt, 

immediately  given,  unqualified,  sim- 
ple and  unconditional.' 

"We  find  the  same  language  in 

other  cases.    The  language  employed 

by  the    parties    to    correspondence 


also  Mayer  v.  McCreery,  119  N.  Y. 
434,  23  N.  E.   R.   1045;    Corcoran  v. 
White,  117  111.  118,  7  N.  E.  II.  525,  57 
Am.  R.  858;  Sawyer  v.  Brossart,  67 
Iowa,  678,  25  N.  W.  R.  876,  56  Am.  R. 
371;  Carter  v.  Bingham, -32  U.  Can. 
"(Q.  B.)615:  Cangas  v.  Rumsey  Mfg. 
Co.,  37  Mo.   App.  297;    Washington 
Ice  Co.  v.  Webster,  62  Me.  341,  16 
Am.  R.  462;  Wilkin  Mfg.  Co.  v.  Loud 
Lumber  Co.  (1892),  94  Mich.  158,  53 
N.  W.  R.  1045   citing  Johnson  v.  Ste- 
phenson.  26    Mich.   63;    Warded  v. 
Williams.  62  Mich.  50.  28  N.  W.  R. 
796;  Whiteford  v. Hitchcock, 74 Mich. 
208,  41  N.  W.  R.  898;  Bowen  v.  Mc- 
Carthy. 85  Mich.  26,  48  N.  W.  R  155); 
Ames"  v.  Smith,  65  Minn.  304,  67  N. 
W    R.  999;  Wemple  v.  North  Dak. 
sr.  69  N. 


bv  the    parties    w    cuurapu^'^      ...  —         ,  - 

varies  as  much,  perhaps,  as  the  Ian-    Elev.  Ca  (1896,,  01  Mmn 

...  ,     .,     • :n„.      W   T?   A7S-  Harris  V.  AniOS  I 


guage  used  by  testators  in  their  wills ; 
so  that,  as  was  observed  by  the  late 
learned  chief  justice  of  this  court, 
in  Bruce  v.  Tolton,  4  App.  R.  144: 
'Whether  there  had  been  an  agree- 
ment, the  result  of  mutual  assent, 
must  obviously  depend  in  each  par- 


W.  R.  478;  Harris  v.  Amoskeag  Lum- 
ber Co.  (1895),  97  Ga.  465,  25  S.  E.  R. 
519-  Phenix  Ins.  Co.  v.  Schultz  (1897), 
42  U.  S.  App.  483,  80  Fed.  R.  337,  25 
C.  C.  A.  453:  McCormick  Harv.  Much. 
Co.  v.  Richardson  (1893),  89  Iowa.  525, 
56  N.  W.  R.  682. 


213 


§§  220,  230.]  LAW   OF   SALE.  [book    I. 

§  229.  Counter-proposition  operates  as  rejection  of  oiler. 

If,  instead  of  accepting  the  offer  as  made,  the  person  addressed 
responds  with  a  counter-proposition,  or  an  offer  to  accept  if 
the  original  offer  be  modified  or  altered,  he  will  thereby  be 
deemed  to  have  rejected  the  first  offer.1  After  such  a  rejec- 
tion, it  is  not  competent  for  the  party  addressed  to  accept  the 
original  offer  unless  it  is  again  renewed.2 

This  rule  is  very  carefully  stated  by  Mr.  Justice  Gray  of  the 
United  States  Supreme  Court3  as  follows:  "As  no  contract  is 
complete  without  the  mutual  assent  of  the  parties,  an  offer  to 
sell  imposes  no  obligation  until  it  is  accepted  according  to  its 
terms.  So  long  as  the  offer  has  been  neither  accepted  nor  re- 
jected, the  negotiation  remains  open,  and  imposes  no  obligation 
upon  either  party ;  the  one  may  decline  to  accept  or  the  other 
may  withdraw  his  offer;  and  either  rejection  or  withdrawal 
leaves  the  matter  as  if  no  offer  had  ever  been  made.  A  pro- 
posal to  accept,  or  an  acceptance,  upon  terms  varying  from 
those  offered,  is  a  rejection  of  the  offer,  and  puts  an  end  to  the 
negotiation,  unless  the  party  who  made  the  original  offer  re- 
news it,  or  assents  to  the  modification  suggested.  The  other 
party,  having  once  rejected  the  offer,  cannot  afterwards  revive 
it  by  tendering  an  acceptance  of  it."4 

j<  230.  What  constitutes  such  counter-proposition. — 

But  in  order  to  operate  as  a  rejection  the  alleged  counter-prop- 
osition must  actually  amount  to  such.  A  mere  inquiry  of  the 
proposer  whether  he  will  alter  his  proposal  is  not,  therefore, 

1  Minneapolis,  etc.  By.  Co.  v.  Colum-  party  to  whom  the  offer  is  made, 
bus  Rolling  Mill,  119  U.  S.  149:  Hyde  this,  in  law.  constitutes  a  rejection 
v.  Wrench,  3  Beav.  334;  Solomon  v.  of  the  offer." 
AVebster.  4  Col.  353:  Baker  v.  Holt,  56  2See post,  %  233. 
Wis.  100.  14  X.  W.  R.  8:  Jenness  v.  3  In  Minneapolis,  etc.  Ey.  Co.  v.  Co- 
Iron    Co..   53   Me.    0:'.:    Beckwith   v.  lumbus  Eolling  Mill,  119  U.  S.  149. 
Cheever,  21  X.  H.  41:  Weaver  v.  Burr,  4  Citing    Eliason    v.     Henshaw,    4 
31  W.  Va.  736,  8  S.  E.  R  743, 3  L.  R  Wheat.    (U.    S.)  225:  Carr  v.  Duval, 
A.  94.     In  the  last  case  it  is  said:  "If  14  Pet.  (U.  S.)  77:  Xational  Bank  v. 
to  the    acceptance  a    condition   be  Hall.  101  U.  S.  43:  Hyde  v.  Wrench,  3 
affixed,  or  any  modification  or  change  Beav.  (Eng.)  334;  Fox  v.  Turner,  1 
in    the  offer  be    requested   by   the  111.  App.  153. 

214 


CH.  VI.]  CONTRACT    OF    SALE  —  IX    GENERAL.  231. 

such  a  counter-proposition  as  will  justify  the  proposer  in  treat- 
ing his  proposal  as  rejected,  and  a  subsequent  acceptance  of 
the  original  offer  before  it  has  been  withdrawn  will  bind  the 
proposer. 

Thus,  in  a  leading  English  case,1  defendant  wrote,  offering 
to  sell  iron  for  40*.  per  ton,  net  cash.     The  offer  to  remain 
"open  till  Monday,"  the  meaning  of  which  expression  was  ad- 
mitted to  be  that  the  offer  was  open  during  all  of  Monday.    ( >n 
Monday  morning  plaintiffs  telegraphed  to  defendant:  "  Pleas 
wire  whether  you  would  accept  forty  for  delivery  over  two 
months,  or  if  Dot,  longest  limit  you  would  give."'   1  defendant  did 
not  answer  this  message,  but  in  an  hour  or  two  sold  the  iron  to 
a  third  person  at  40*.  and  then  advised  plaintiffs  of  the  sale  by 
telegram.     Before  the  last  message  arrived  plaintiffs  had  tele- 
graphed to  defendant  an  acceptance  of  his  offer,  and  this  was 
held  to  be  a  sufficient  acceptance.     Said  the  court :  "  The  form 
of  the  telegram  is  one  of  inquiry.     It  is  not  '  I  offer  forty  for 
delivery  over  two  months,'  which  would  have  likened  the  case 
to  Eydi    v.  Wrench?  where  one  party  offered  his  estate  for 
£1, and  the  other  answered  by  offering  £960.     Lord  Lang- 
dale,  in  that  case,  held  that  after  the  £950  had  been  refusal, 
the  party  offering  it  could  not,  by  then  agreeing  to  the  original 
proposal,  claim  the  estate,  for  the  negotiation  was  at  an  end  by 
the  refusal  of  his  counter-proposal.     Here  there  is  no  counter- 
proposal.    The  words  are,  'Please  wire  whether  you  would 
accept  forty  for  delivery  over  two  months,  or  if  not,  the  lon_ 
limit  vou  will  give.'     There  is  nothing  specific-  by  way  of  offer 
or  rejection,  but  a  mere  inquiry,  which  should  have  been  an- 
swered and  not  treated  as  a  rejection  of  the  off<:-r." 

B  -231,  .  So  where  there  has  been  an  absolute  and  uncon- 
ditional acceptance,  the  mere  expression  of  a  hope  by  the  party 
accepting  that  the  other  will  do  more  than  he  has  agreed  will 
not  defeat  the  acceptance:5  nor.  where  a  party  has  by  one 
letter  distinctly  accepted  an  offer  to  sell  goods,  will  the  mere 

i  Stevenson  v.  McLean,  5  Q.  B.  Div.        *  3  Bear.  334. 
34k  3  Phillips  v.  Moor,  71  M- 

215 


§§  232,  233.]  law  or  sale.  [cook  i. 

fact  that  by  a  subsequent  letter  he  orders  more  affect  the  ac- 
ceptance.1 

§  232.  If  counter-proposal  is  accepted  a  contract  ex- 
ists.—So  though  a  counter-proposal,  or  an  offer  of  conditional 
acceptance,  is  to  be  regarded  as  a  rejection  of  the  original  pro- 
posal, it  is,  of  course,  competent  for  the  party  making  the  first 
proposal  to  accept  the  counter-proposition  and  thus  effect  a 
contract.  In  this  respect  the  counter-proposition  stands  upon 
the  same  footing  as  an  original  proposition,  and  if  accepted  a 
contract  will  ensue.2 

This  acceptance,  moreover,  need  not  ordinarily  be  in  writing; 
it  may  be  made  orally  or  be  inferred  from  the  conduct  of  the 
other  party.3 

§  233.  Original  proposal  not  open  to  acceptance  after 

its  rejection  by  counter-proposition.— A  further  effect  of  the 
rejection  of  the  original  proposal  by  the  making  of  a  counter- 
proposition  is,  as  has  been  already  seen,4  that  the  original  pro- 
posal, being  rejected,  is  not  afterwards  open  to  acceptance 
unless  its  proposer  in  form  or  substance  renews  it.  Speaking 
of  this  effect  of  the  rejection  it  was  said  in  one  case:5  "The 
original  offer  thereby  loses  its  vitality,  being,  so  to  speak,  passed 
by  in  the  course  of  the  negotiation,  so  as  to  be  no  longer  pend- 
ing between  the  parties,  and  it  becomes  an  open  proposition 
again  only  when  renewed  by  the  party  who  first  made  it. 
Hence,  a  party  who  has  submitted  a  counter-proposition  can- 
not, without  the  assent  of  the  other  party,  withdraw  or  aban- 

1  Gartner  v.  Hand,  86  Ga.  558,  12        4  See  two  preceding  sections. 

S.  E.  R.  878.  5  Fox  v.  Turner  (1878),  1  111.  App. 

2  In  Borland  v.  GufTey,  1  Grant's  153,  citing  1  Pars,  on  Contr.  477; 
Cas.  (Pa.)  394,  A  made  a  proposi-  Baker  v.  Johnson,  37  Iowa,  186;  Elia- 
tion  to  B;  B  declined  to  accept  it,  son  v.  Henshaw,  4  Wheat.  225;  Carr 
but  made  a  different  one  to  A  by  v.  Duval,  14  Peters,  77;  Jenness  v. 
messenger.  A  was  satisfied  with  this  Mt.  Hope  Iron  Co.,  53  Me.  20;  Bel- 
last  proposition  of  B's,  but  did  not  fast,  etc.  Ry.  Co.  v.  Unity,  62  Me.  148; 
notify  B  of  his  assent.  Held,  that  B  Sheffield  Canal  Co.  v.  Radway  Co.,  3 
was  not  bound.  Rail.  &  Can.  Cas.  121;  Tinn  v.  Hoff- 

3  Anglo-American  Pro  v.  Co.  v.  Pren-    man,  29  Law  Times  R.  (N.  S.)  273. 
tiss  (1893),  157  I1L  506,  42  N.  E.  R.  157. 

216 


cir.  vi.] 


CONTRACT   OF    SALE IN    GENERAL. 


[§  234. 


don  the  same  .and  then  accept  the  original  offer  which  he  has 
once  virtually  rejected." 

§234.  Terms  of  sale  must  be  fully  agreed  upon. —  There 
can  obviously  be  no  sale  until  the  terras  upon  which  it  is  to  be 
made  have  been  fully  determined  and  mutually  agreed  upon. 
Mere  negotiation  is  not  enough:  the  negotiation  must  have 
ripened  into  a  completed  agreement.1     And  the  agreement,  to 


•  See  Utley  v.  Donaldson,  94  U.  S. 
29;  Oakman  v.  Rogers,  120  Mass.  214; 
Gowing  v.  Knowles,  118  Mass.  232. 

In  Whiteford  v.  Hitchcock,  74 
Midi.  208,  41  N.  W.  R.  898,  the  par- 
ties had  been  negotiating  for  the 
sale  of  a  boat.  Whiteford  wrote 
Hitchcock  that  he  would  sell  the 
boat  for  a  given  price,  but  that  the 
price  must  be  paid  or  secured  before 
shipment  Hitchcock  wrote  back 
submitting  a  different  offer,  pay- 
ment to  be  secured  on  delivery  of 
boat  in  Muskegon,  and  asked  a  re- 
ply by  telegraph.  Whiteford  tele- 
graphed that  he  would  ship  the  boat 
and  would  also  come  himself.  Said 
the  court:  "It  will  be  noticed  that 
in  his  telegram  the  plaintiff  does 
not  accept  their  offer  in  so  many 
words.  He  wires  them  that  he  will 
send  boat  that  week,  and  he  will  be 
in  Muskegon  first  of  the  next  week. 
Suppose  that  he  had  shipped  the 
boat  to  Muskegon,  and  had  required, 
after  he  got  there,  the  money  for  his 
boat,  or  security,  before  he  delivered 
it,  or  that  the  security  offered  by 
them  had  not  been  satisfactory  to 
him,  could  the  defendants,  upon  this 
correspondence,  have  maintained  an 
action  against  him  for  breach  of 
contract  if  he  had  refused  to  deliver 
it  because  they  would  not  pay  or 
secure  the  pay  for  it  before  deliv- 
ery, or  because  the  security  offered 
by  them  did  not  suit  him?  "We  think 


not.  The  minds  of  the  parties  had 
not  met  upon  the  terms  of  payment, 
and  the  contract  was  not  completed 
in  this  respect." 

In  Gates  v.  Nelles,  62  Mich.  444.  29 
N.  W.  R.  73,  complainant  and  de- 
fendant were  copartners,  and  prior 
to  June  22,  lss."),  had  been  negotiat- 
ing for  the  purchase  by  one  or  the 
other  of  his  copartner's  interest  in 
the  firm  assets  and  business,  with 
the  understanding  that  a  valuation 
should  be  placed  upon  the  property. 
over  and  above  the  firm  debts  and 
liabilities,  to  serve  as  a  basis  for  an 
offer  on  either  side  to  buy  or  sell. 
During  these  negotiations,  which 
were  verbal,  and  on  June  22,  1885, 
complainant  made  a  written  offer 
to  defendant  to  buy  or  sell  on  the 
basis  of  $16,500,  the  purchaser  to  as- 
sume all  company  liabilities,  and 
give  sufficient  security  for  their  pay- 
ment and  of  the  purchase  price.  De- 
fendant on  the  next  day  accepted 
complainant's  offer  in  writing,  on 
the  terms  mentioned  therein,  and 
afterwards  claimed  that  the  letters 
constituted  a  complete  sale,  and  re- 
fused to  have  anything  more  to  do 
with  the  joint  business.  Held,  that 
the  letters  did  not  constitute  a  com- 
pleted sale;  that  complainant's  offer 
looked  towards  further  agreements 
as  to  security  for  the  purchase  price 
and  indemnity  for  the  payment  of 
the  firm  debts,  and  was  only  one  of 


217 


234.] 


LAW    OF    SALE. 


[book 


be  finally  settled,  must  comprise  all  the  terms  which  the  par- 
ties intend  to  introduce  into  it.  "  An  agreement  to  enter  into 
an  agreement  upon  terms  to  be  afterwards  settled  between  the 
parties  is  a  contradiction  in  terms.     It  is  absurd  to  say  that  a 


the  steps  leading  to  a  sale,  and  con- 
templated a  meeting  of  the  parties, 
if  accepted,  and  a  completion  of  the 
transaction. 

In  Topliff  v.  McKendree,  88  Mich. 
148,  50  N.  W.  R.  109,  the  defendant, 
a  stock-broker  in  D.,  wrote  plaintiffs, 
stock-brokers  in  B.,  offering  to  sell 
them  one  hundred  shares  of  mining 
stock  at  $41,  adding:  "  Can  ship  it  to 
you,  I  guess,  with  draft  attached.'' 
Plaintiffs      answered      by      asking 
whether  defendant  would  sell  part 
of  such  shares,  and  for  how  long  the 
offer  held  good.      Two  days  later, 
plaintiffs     telegraphed     that    they 
would  take  the  stock,  asking  defend- 
ant to   forward  it,   with    draft  at- 
tached, an  d  also  wrote  him  to  the  same 
effect.   Held,  (1  j  that  this  correspond- 
ence did  not  make  a  completed  con- 
tract, as  plaintiffs  did  not  bind  them- 
selves to  accept  the  stock  and  pay 
for  it  in  D.,  nor  did  defendant,  by  the 
phrase  in  his  first  letter,  '•  Can  ship 
it  to  you,  I  guess,   with   draft  at- 
tached," absolutely  bind  himself  to 
send  the  stock  to  B. ;  and  hence  the 
manner  and  place  of  delivery  were 
left  Open  to  future  negotiations  be- 
tween the  parties.     (2)  Defendant's 
reply  to  plaintiffs'  offer  to  take  the 
one  hundred  shares,  stating  that  he 
was  unable  as  yet  to   furnish   the 
stock,   but  that  he   had    no  doubt 
about  his  ability  to  get  it,  giving  his 
reasons  therefor,  does  not  constitute 
a  binding  agreement  by  defendant 
to  procure  the  stock.     McDonald  v. 
Bewick,  51  Mich.  79,  16  N.  W.  R.  240; 
Eggleston  v.  Wagner,  46  Mich.  610, 


10  N.  W.  R.  37;  Bowen  v.  McCarthy, 
85  Mich.  26,  48  N.  W.  R.  155,  were 
cited. 

In  Felthouse  v.  Bindley,  11  C.  B. 
(N.  S.) 869,a  nephew  wrote  to  his  uncle 
that  he  could  not  take  less  than 
thirty  guineas  for  a  horse,  for  which 
the  uncle  had  offered  '301.  The  uncle 
wrote  back  saying:  "Your  price,  I 
admit,  was  thirty  guineas;  1  offered 
307.,  never  offered  more,  and  you  said 
the  horse  was  mine;  however,  as 
there  may  be  a  mistake  about  him, 
I  will  split  the  difference,  30/.  15s.,  I 
paying  all  expenses  from  Tarn  worth. 
You  can  send  him  at  your  conven- 
ience between  now  and  the  25th  of 
March.  If  I  hear  no  more  about  h  im, 
I  consider  the  horse  is  mine  at  301. 
15s."  This  letter  was  dated  the  2d 
of  January;  on  the  21st  of  February 
the  nephew  sold  all  his  stock  at  auc- 
tion, the  defendant  being  the  auc- 
tioneer, but  gave  special  orders  not 
to  soil  the  horse  in  question,  saying 
it  was  his  uncle's.  The  defendant  by 
mistake  sold  the  horse,  and  the  ac- 
tion was  trover  by  the  uncle.  Held, 
that  there  had  been  no  complete  con- 
tract between  the  uncle  and  the 
nephew,  because  the  latter  had  never 
communicated  to  the  former  any 
assent  of  the  sale  at  30/.  15s. ;  that  the 
uncle  had  no  right  to  put  upon  his 
nephew  the  burden  of  being  bound 
by  the  offer  unless  rejected,  and  that 
there  was  nothing  up  to  the  date  of 
the  auction  sale  to  prevent  the 
nephew  from  dealing  with  the  horse 
as  his  own.  The  plaintiff,  therefore, 
was  nonsuited  on  the  ground  that  he 


218 


CIL  VI.] 


CONTRACT   OF    SALE  —  IN    GENERAL. 


[§  234. 


man  enters  into  an  agreement  until  the  terms  of  that  agree- 

merit  are  settled.1' 

Where,  therefore,  the  negotiations  have  not  vet  been  crys- 
tallized into  a  complete  offer  and  acceptance,  or  where  a  di» 


had  no  property  in  the  horse  at  the 
date  of  the  alleged  conversion. 

In  Appleby  v.  Johnson,  L.  R.  9  C.  P. 
158,  the  plaintiff  wrote  to  the  defend- 
ant proposing  to  enter  his  services  as 


ments,  such  agreed  valuations  to  be 
placed  on  the  plat  of  said  farm. 

The  time  for  accepting  this  "/ro- 
of sale  was  limited  to  twenty  days, 
prior  to    the    expiration    of   whicl 


antproposmgjo^r^v^.    „  ^'^  the  offer 

salesman  upon  ceitain  terms    nciu        1  defendant  to  prepare 


ing,  among  others,  a  commission 
upon  all  sales  to  be  effected  by  In  in. 
for  which  purpose  a  list  of  merchants 

with  whom  he  should  deal  was  to  be 
prepared     The  defendant  replied  as 
follows:    "Yours  of  yesterday  em- 
bodies the  substance  of  our  conver- 
sation and  terms.    If  we  can  define 
some  of  the  terms  a  little  clearer,  n 
might  prevent  mistakes:  but  I  think 
„.,.  are  quite  agreed  on  all   We  shall 
therefore,  expect  you  on  Monday;" 
and  the  postscript  added:  "I  have 
made  a  list  of  customers  which  we 
can  consider  together."   Held,  not  to 
be  an  absolute  and  unconditional  ac- 
ceptance of  the  defendant's  proposal. 
In  Wardell  v.  Williams,  62  Mich. 
50,  28  N.  W.  R.  796,  defendant  agreed 
in  writing  to  sell  to  plaintiff  his  farm 
for  $39,000,  payable  as  follows:  $12,000 
in  cash,  and  the  balance  on  or  before 
four  years  from  the  date  of  a  mort- 
gage to  be  given  as  security  for  such 
del  erred  payment,  plaintiff  to  have 
the    privilege    of  paying    $1,000  or 
more  at  any  time  during  the  four 
years  on  account  of  the  unpaid  prin- 
cipal.   The  agreement  further  stated 
that  the  farm  had  been  subdivided 
into  lots;  that  the  parties  were  to 
agree  to  the  valuation  of  each  lot, 
and  defendant  agreed,  on  the  mak- 
ing of  such  optional  payments,  to  re- 
lease lots  of  equal  value  to  such  pay 


and  requested  defendant  to  prepare 
his  deed.    Defendant  answered  that 
the  agent  of  an  insurance  company 
which  held  a  mortgage  on  the  land 
was  then  absent  and  would  not  re- 
turn until  the   following  Tuesday, 
which  would  prevent  his  obtaining 
a  discharge  of  the   mortgage  until 
that  date:  and  it  being  suggested  by 
plaintiff  that  the  twenty  days'  op- 
tion  would  expire  before  the  date 
named,  defendant  said  that  would 
make  no  difference— that  he  would 
carry  out  the  contract  even  after 
sixty  'lays. 

Plaintiff  made  no  tender  of  the 
cash  payment,  or  of  any  deed  or 
mortgage,  executed  or  to  be  exe- 
euted,  and  before  the  Tuesday  ar- 
rived, and  after  the  expiration  of  the 
twenty  days,  defendant  sold  the  land 
to  another  party. 

11,1,1,  in  a  suit  brought  to  recover 
damages  for  the  breach  of  the  alleged 
contract  for  sale,  that  the  offer  did 
not  constitute  a  completed  contract, 
but  upon  its  face  looked  to  future 
action  and  negotiations  between  the 
parties  to  determine  and  agree  upon 
the  valuation  to  be  placed  upon  the 
lots,  and  that  this  part  of  the  offer 
was  an  essential  part  of  the  terms 
and  conditions  of  sale  and  payment. 
In  order  to  pass  title  to  personal 
property  under  a  contract  of  sale, 


219 


§  235.]  LAW    OF    SALE.  [BOOK    I. 

pute  is  yet  going  on  between  the  parties  as  to  terms,  or  where 
the  essential  elements,  such  as  number,  price,  term  of  credit, 
and  the  like,  have  not  yet  been  settled,  there  can  be  no  sale. 
As  is  said  in  one  case,1  "the  agreement  must  be  entire  —  as  to 
the  thing  sold,  its  price,  the  time  of  delivery,  and  the  terms  of 
payment." 

§  235.  Negotiations  in  contemplation  of  more  formal  con- 
tract.—  Where  it  is  evident  from  the  words  or  conduct  of  the 
parties  that  they  do  not  intend  to  be  bound  by  their  informal 
preliminary  negotiations,  but  only  by  an  express  and  formal 
contract  to  be  afterwards  entered  into,  they  will  not  be  bound 
until  such  formal  contract  has  been  made,  unless  its  necessity 
be  waived.  Thus  in  one  case2  it  appeared  that  the  plaintiffs 
had  advertised  for  tenders  for  goods,  but  saying  expressly:  "All 
contractors  will  have  to  sign  a  written  contract  after  accept- 
ance of  tender."  Defendant  submitted  a  tender  and  received 
notice  of  its  acceptance,  but  later  in  the  same  day  wrote  to  the 
plaintiff  that  he  declined  to  supply  the  goods.  In  an  action  to 
recover  damages  for  his  refusal,  it  was  held  that  there  was  no 
contract  between  the  parties.  Parke,  B.,  said :  "  It  was  clearly 
the  intention  of  the  parties  that  there  should  be  no  binding 
ensrao-ement  until  a  written  contract  had  been  executed.  The 
tender,  though  accepted,  was  not  a  contract." 

"  But  on  the  other  hand,"  as  is  said  by  Lord  Cairns  in  a  recent 
case,3  "  there  is  no  principle  of  law  better  established  than  this: 
that  even  although  parties  may  intend  to  have  their  agreement 

the  purchase  price  must  be  fixed,  and,  1  Washington  Ice  Co.  v.  Webster, 
if  credit  is  to  be  given,  the  time  and  62  Me.  341,  16  Am.  R.  462,  citing  Sieve- 
terms  of  payment  must  be  agreed  wright  v.  Archibald,  17  Q.  B.  103; 
upon.  Hence  an  agreement  for  the  Gether  v.  Capper,  18  C.  B.  865;  Hamil- 
sale  of  a  quantity  of  ore  for  a  price  ton  v.  Terry,  11  C.  B.  954. 
per  ton  dependent  upon  that  to  be  2  Guardians  of  the  Poor  v.  Petch,  10 
subsequently  received  by  the  vendee  Exch.  610. 

on  its  sale  by  him  lacks  an  essential  3  Brogden  v.  Metropolitan  Ry.  Co., 

ingredient  of  a  contract  of  sale,  and  L.  R.  2  App.  Cas.  666. 

cannot  be  enforced.     Foster  v.  Lum-  To  the  same  effect  see  Lewis  v. 

bermen's  Mining  Co.,  68  Mich.  188,  Brass,  3  Q.  B.  D.  667;  Rossiter  v.  Mil- 

36  N.  W.  R.  171,  citing  Williamson  v.  ler,  3  App.  Cas.  1124;  Bonnewell  v. 

Berry,  8  How.  (U.  S.)  544.  Jenkins,  8  Ch.  D.  70. 

220 


Oil.  VI.]  CONTRACT   OF   SALE  — IX   C.EXEKAL.  [§  236- 

expressed  in  the  most  solemn  and  complete  form  that  convey- 
ancers and  solictors  are  able  to  prepare,  still  there  may  b,  a 

sensus  between  the  parties  tar  short  of  the  complete  mode 

of  expressing  it,  and  that  mimoi  may  be  discovered  from 
letters  or  from  other  documents  of  an  imperfect  and  incomplete 
description;  I  mean  imperfect  and  incomplete  as  regards  lorm. 
At  the  same  time,  as  Lord  Cairns  further  remarks,  •  1  hue  are 
no  cases  npon  which  difference  of  opinion  may  be  more  readilj 
entertain,,!,  or  which  are  always  more  embarrassing  to  dispose 
of  than  eases  where  the  court  has  to  decide  whether  or  not, 
havine  regard  to  letters  and  documents  which  have  not  as- 
sumed the  complete  and  formal  shape  of  executed  and  solemn 

agl ments,  a  contract  has  really  been  constituted  between  the 

parties.1' 

,  236    In  a  late  case,1  the  principle  which  governs  in 

these  cases  is  said  to  be  this:    -If  there  is  a  simple  acceptance 

of  an  offer  to  purchase,  accompanied  by  a  statement  that  the 

iCrossley  v.  Mavcock,  L.  R  13  Eq.  to  be  reduced  to  writing;  that  tins 
180 %  —  the  vendorsof  Land,  was  not  done,  and  that  there  was  no 
in  a  letter  acknowledging  the  receipt    meeting  of  minds.  _ 

.  n  offer  of  purchase,  wrote  as  fol-        b  Ridgway  v.  Yn  barton  6  II  L. 

;    ■      which  offer  we  accept,  and     Cases,  238,  the  Lord  Chancellor  said. 
Z\,Z    vou  two  copies  of  condi-    "I  again  protest  against  its  being 
UonsofsaW'  and  therewith  inclosed    supposed,  because    persons  wish  to 
,    ,1  a  . reement  with  conditions    have  a  formal  agreement  drawn  up 
:fa^ialch;inu,c,i,/,,  that  the     that  therefore  they  cannot  be  bound 
acceptance  was  only  conditional,  and    by  a  previous  agreement  if  t  is  clear 
C-'was  no  final  agreement  of    that  such  an  agreement  has  ben 
whtah  specific  performance  could  be     made;  but  the  circumstance  that  the 
^ot TaTa^inst  the  purchaser,    parties  do  intend  a  subsequent  agree- 
Methu.lv  v.  Ross,  10  Mo.  App.    ment  to  be  made  is  strong  evidence 
10 1  it  1    ^he  mere  fact  that  a    to  show  that  they  did  not  intend  the 

Sen  contract  was  to  be  subse-  previous  negotiations ,  ^amount .to 
quently  prepared  does  not  show  that  an  agreement  And  in  the  same 
a  W  agreement  between  the  par-  case,  Lord  Wensleydale  sad:  An 
ties  was°not  made,  but  it  tends  to  agreement  to  be  finally  sett  ed  must 
I",  and.  m  this  case,  we  think  comprise  all  the  terms  which  the 
i  •  ,  that  there  was  no  contract  to  parties  intend  to  introduce  into  the 
- h  he  parties  had  agreed  in  all     agreement.     An  agreement  to  enter 

en        that  there  was  to  be  a    into  an  agreement  upon  terms  to  be 
nTore  expli  it  agreement  which  was    afterwards  settled  between  the  par- 


§§  237,  238.]  LAW  OF  SALE.  [book  I. 

acceptor  desires  that  the  arrangement  should  be  put  into  some 
more  formal  terms,  the  mere  reference  to  such  a  proposal  will 
not  prevent  the  court  from  enforcing  the  final  agreement  so 
arrived  at.  But  if  the  agreement  is  made  subject  to  certain 
conditions  then  specified  or  to  be  specified  by  the  party  making- 
it  or  by  his  solicitor,  then  until  these  conditions  are  accepted 
there  is  no  final  agreement  such  as  the  court  will  enforce." 

§  237. .  Where  the  parties  have  intended  to  have  their 

agreement  reduced  to  writing,  and  a  writing  has  been  prepared 
which  both  agree  contains  the  terms  of  their  agreement,  but 
both  neglect  to  sign  it,  such  writing,  while  it  cannot  take  effect 
as  a  written  contract,  is  the  best  evidence  of  what  the  actual 
agreement  of  the  parties  was.1 

§  238.  Acceptance  must  be  com nnuiicatetl.— There  must, 
moreover,  not  only  be  acceptance  of  or  assent  to  the  offer,  but 
that  acceptance  or  assent  must  be  communicated  to  the  other 
party.  A  mere  determination  to  accept,  or  a  mental  conclu- 
sion not  evidenced  by  any  outward  act,  is  not  enough.  As  stated 
by  Mr.  Benjamin,  "the  assent  must  either  be  communicated 
to  the  other  party,  or  some  act  must  have  been  done  which  the 
other  party  has  expressly  or  impliedly  offered  to  treat  as  a 
communication,  as,  e.  g.,  in  contracts  by  correspondence,  the 
posting  of  the  letter  of  acceptance;  or  the  assent  may  be  in- 
ferred from  subsequent  conduct;  but  an  assent  which  is  neither 

ties  is  a  contradiction  in  terms.     It  intended  only  as  a  preliminary  nego- 

is  absurd  to  say  that  a  man  enters  tiation.     The  question  in  such  cases 

into  an  agreement  till  the  terms  of  always  is.  Did  they  mean  to  contract 

that  agreement  are  settled.     Until  by  their  correspondence,  or  were  they 

those  terms  are  settled,  lie  is  per-  only  settling  the  terms  of  an  agree- 

fectly  at  liberty  to  retire  from  the  ment  into  which  they  proposed  to 

bargain.  enter  after  all  itg  particuiars  were 

In  Lyman  v.  Robinson,  14  Allen  adjusted,  which  was  then  to  be  form- 

(Mass.),  252,  2.54,  it  is  said:  "A  valid  ally  drawn   up,  and  by  which  alone 

contract  may  doubtless  be  made  by  they  designed  to  be  bound  ?  " 
correspondence,  but  care  should  al-        1  Bryant  v.  Smith,  87  Mich.  525,  49 

ways  be  taken  not  to  construe  as  an  N.  W.  R.  889. 
agreement  letters  which  the  parties 

222 


CH.  VI.] 


CONTKACT    OF    SALE —  IN    GENERAL 


[§  239. 


communicated  to  the  other  party  nor  followed  up  by  action, 
a  mere  -mental  assent.'  as  it  is  termed,  is  insufficient."1 

|  239.  Manner  of  acceptance.— The  offer,  further,  must  not 
only  he  accepted,  but  it  must  be  accepted  in  accordance  with 
the  terms  expressly  or  impliedly  prescribed  for  its  acceptance. 


1  Benjamin  on  Sale. 

In  Felthouse  v.  Bindley.  11  Com.  B. 
(N.  S.'  868.  103  Eng.  Com.  Law,  868, 
it  appeared  that  A  and  B  verbally 


come  to  the  general  proposition 
which  Mr.  Justice  Brett  seems  to 
have  laid  down,  that  a  simple  ac- 
ceptance in  your  own  niind.  without 


treated  for  the  purchase  of  ahorse    any  intimation  to  the  other  party, 


by  the  former  of  the  latter.     A  few 
days   afterwards  B  wrote  to  A  sav- 
in- that  he  had  been  informed  that 
there  was  a  misunderstanding  as  to 
the  price.  A  having  imagined  that 
he  had  bought  the  horse  for  £30,  B 
that  he  had  sold  it  for  thirty  guineas. 
A  thereupon  wrote  to  B  proposing 
to  split  the  difference,  adding:  "If  I 
hear  no  more  about  him.  I  consider 
the   horse   is  mine  at  30/.  15&."    To 
this  no  reply  was  sent.     No  money 
-     rid,  and  the  horse  remained  in 
session.  Six  weeks  afterwards 
the  defendant,  an  auctioneer   who 
was  employed  by  B  to  sell  his  farm- 
ing stock,  and  who  had  been  directed 
by  B  to  reserve  the  horse  in  qm  - 
as  it  had  already  been  sold,  by  mis- 
take put  it  up  with  the  rest  and  sold 
it.     After  the  sale  B  wrote  to  A  a 
letter  which  substantially  amounted 
to    an    acknowledgment     that    the 
-     had  been  sold  to  him.     Held, 
that  A  could  not  maintain  an  action 
against  the  auctioneer  for  the  con- 
version of  the  horse,  he  having  no 
property  in  it  at  the  time  the  defend- 
ant sold  it.  B's  subsequent  letter  not 
having  ias  between  A  and  a  stranger 
any  relation  back  to  A's  proposal. 

In  Brogden  v.  Metropolitan  Ry. 
Co..  L.  R.  i  App.  Cas..  at  p.  698,  Lord 
Blackburn   savs:    "But    when    you 


an  1  expresse  1  by  a  mere  private 
act.  such  as  putting  a  letter  into  a 
drawer,  completes  a  contract.  I  must 
say  I  differ  from  that.  It  appears 
from  the  Year  Books  that  as  long 

a  the  time  of  Edward  I' 
Edw.  IV..  T.  Pasch  case,  2)  Chief  Jus- 
tice Brian  decided  this  very  | 
The  plea  of  the  defendant  in  that 
case  justified  the  seizing  of  some 
growing  crops  becau-e  he  said  the 
plaintiff  had  offered  him  to  go  and 
look  at  them,  and  if  he  liked  them, 
and   would    -  for  them, 

he  might  take  them:  that  was  the 
justification,    That  case  is  rel 
to    in    a   book    which   I    publis 
a     good    many   years       -        Black- 
burn on  Contract  of  Sale.  p.  190  et 
ind  is  there  translated.     Brian 

-  i  very  elaborate  judgment,  ex- 
plaining the  law  of  the  unpaid  vend- 
or's lien,  as  early  as  that  time,  ex- 
actly  as  the  law  now  stdnds,  and  he 

-  [uently  says:  'This  plea  is 
clearly  bad.  as  you  have  not  shown 
the  payment  or  the  tender  of  the 
money:'  but  he  goes  farther,  and 
-  -  I  am  quoting  from  memory, 
but  I  think  I  am  quoting  correctly): 
'moreover,  your  plea  is  utterly 
naught,  for  it  does  not  show  that 
when  you  had  made  up  your  mind 
to  take  them  you  signified  it  to  the 


223 


§  239.] 


LAW    OF    SALE. 


[book.  I. 


It  is  entirely  competent  for  the  party  who  makes  the  offer  to 
stipulate  that  it  shall  not  be  binding  upon  him  unless  its  ac- 
ceptance be  communicated  to  him  in  a  certain  manner,1  at  a 
prescribed  place,2  or  within  a  designated  time;3  and  the  per- 
son who  seeks,  by  acceptance  of  such  an  offer,  to  bring  a  bind- 
ing contract  into  existence,  must  show  either  that  he  has  com- 
plied with  the  terms  so  fixed  or  that  the  other  party  has  waived 
the  necessity  for  such  compliance. 

Where,  however,  no  express  terms  have  been  prescribed,  the 
manner  of  acceptance  is  a  matter  to  be  deduced  from  the  ap- 
parent intention  of  the  parties  as  evidenced  by  their  acts,  sur- 


plaintiff,  and  your  having  it  in  your 
own  mind  is  nothing,  for  it  is  trite 
law  that  the  thought  of  man  is  not 
triable,  for  even  the  devil  does  not 
know  what  the  thought  of  man  is; 
but  I  grant  you  this,  that  if  in  his 
offer  to  you  he  had  said,  Go  and  look 
at  them,  and  if  you  are  pleased  with 
them  signify  it  to  such  and  such  a 
man,  and  if  you  had  signified  it  to 
such  and  such  a  man,  your  plea 
would  have  been  good,  because  that 
was  a  matter  of  fact.'  I  take  it,  my 
lords,  that  that,  which  was  said  three 
hundred  years  ago  and  more,  is  the 
law  to  this  day,  and  it  is  quite  what 
Lord  Justice  Mellish,  in  Ex  parte 
Harris.  Law  R.  7  Ch.  App.  593,  accu- 
rately says,  that  where  it  is  expressly 
or  impliedly  stated  in  the  offer  that 
you  may  accept  the  offer  by  posting 
a  letter,  the  moment  you  post  the 
letter  the  offer  is  accepted.  You  are 
bound  from  the  moment  you  post 
the  letter;  not,  as  it  is  put  here, 
from  the  moment  you  make  up  your 
mind  on  the  subject." 

To  the  same  effect:  Mactier  v. 
Frith,  6  Wend.  (N.  Y.)  103,  21  Am. 
Dec.  262;  Jenness  v.  Iron  Co.,  53 
Me.  20. 

1  Thus  in  Bosshardt  &  Wilson  Co. 


v.  Crescent  Oil  Co.,  171  Pa.  St.  109,  32 
Atl.  R.  1120,  the  parties  had  stipu- 
lated for  an  acceptance  in  writing, 
and  the  court  said  that  no  other 
method  would  suffice. 

2  Thus  in  Eliason  v.  Henshaw  (1819), 
4  Wheat.  (17  U.  S.)  225,  an  offer  of 
purchase  was  made,  stipulating  for 
an  acceptance  "  by  return  of  wagon  " 
to  the  place  at  which  the  offerer  then 
was,  namely,  at  Harper's  Ferry.  In- 
stead of  so  replying,  the  other  party 
sent  his  acceptance  by  mail  to  a  differ- 
ent place, namely, toGeorgetown.  This 
letter  was  afterwards  received,  but 
the  proposed  buyer  then  declined  to 
consummate  the  purchase.  The  court 
said  that  "an  acceptance  communi- 
cated at  a  place  different  from  that 
pointed  out  by  the  plaintiffs  in  error 
[the  proposers],  and  forming  a  part 
of  their  proposal,  imposed  no  obliga- 
tion binding  upon  them,  unless  they 
had  acquiesced  in  it,  which  they  de- 
clined doing.  It  is  no  argument  that 
an  answer  was  received  at  George- 
town; the  plaintiffs  in  error  had  a 
right  to  dictate  the  terms  upon 
which  they  would  purchase  the  flour, 
and  unless  they  were  complied  with 
they  were  not  bound  by  them." 
3  See  post,  §  24k 
224 


CH.  VI.]  CONTKACT   OF    SALE  —  IN   GENERAL.       [§§  240,241. 

roun dings  or  location,  and  by  the  consideration  of  what  is 
convenient  or  usual  in  like  cases. 

§  240,  What  constitutes. — ""What  shall  constitute  an 

acceptance,"  said  Mr.  Justice  Marcy  in  the  leading  case  of 
Mactier  v.  Frith,1  "  will  depend  in  a  great  measure  upon  cir- 
cumstances. The  mere  determination  of  the  mind,  unacted  on, 
can  never  be  an  acceptance.  Where  the  offer  is  by  letter,  the 
usual  mode  of  acceptance  is  by  the  sending  of  a  letter  announc- 
ing a  consent  to  accept;  where  it  is  made  by  messenger,  a  de- 
termination to  accept  returned  through  him,  or  sent  by  another, 
would  seem  to  be  all  the  law  requires,  if  the  contract  may  be 
consummated  without  writing.  There  are  other  modes  which 
are  equally  conclusive  upon  the  parties;  keeping  silence  under 
certain  circumstances  is  an  assent  to  a  proposition;  anything 
that  shall  amount  to  a  manifestation  of  a  formal  determination 
to  accept,  communicated,  or  put  in  the  proper  way  to  be  com- 
municated, to  the  party  making  the  offer,  would  doubtless 
complete  the  contract." 

§241.  Notice  of  acceptance  by  conduct. —  It  is  evi- 
dent from  the  foregoing  principles  that,  unless  the  parties  have 
stipulated  otherwise,  the  acceptance  of  the  offer  need  not  be  in 
any  particular  form  and  need  not  be  evidenced  by  express 
words.  The  fact  of  the  acceptance,  and  the  communication  of 
that  fact  to  the  proposer  in  any  manner  reasonably  warranted 
by  the  situation,  are  the  material  things.  Thus  in  one  case,2  it 
appeared  that  the  plaintiff  had  sent  to  the  defendant  a  number 
of  orders  for  goods  to  be  supplied  as  specified.     The  latter 

1 6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  have  prompt  attention."    Held,  not 

262.     Followed  in  Trevor  v.  Wood,  an     acceptance.     Said     the     court: 

36  N.  Y.  307,  93  Am.  Dec.  511.  "Promise  to  give  the  proposal  atten- 

Promise  to  give  prompt  atten-  tion  was  not  a  promise  of  accept- 

tion,  not  an  acceptance. —  InManier  ance.     It  was  not  an  assent  to  it. 

v.  Appling.  112  Ala.  663,  20  S.  K.  978,  It   was  no  more  than  a  courteous 

the  proposer  made  an  offer  (an  order)  promise  to  give  it  consideration." 
to  buy  goods.     The  party  addressed        2  Jordan    v.    Patterson    (1896),    67 

replied  acknowledging  the  receipt  of  Conn.  473,  35  Atl.  R.  521. 
the  offer  and  said,  "  The  same  shall 

15  225 


8  242.]  LAW  OF  SALE.  [BOOK  I. 

replied,  saying,  "We  are  in  receipt  of  the  following  contracts, 
for  which  we  thank  you,"  and  appended  to  this  a  detailed  de- 
scription of  the  orders.  Part  of  the  goods  only  having  been 
supplied,  the  defendants  insisted  that  their  letter  was  not 
an  acceptance;  and,  if  it  was  an  acceptance  at  all,  it  was  an 
acceptance  of  some  one  of  the  orders  only  and  not  of  all.  But 
it  was  held  that  the  letter  constituted  a  sufficient  acceptance  of 
the  orders  and  of  all  of  them. 

§  242.  .  So,  that  the  party  addressed  acted  upon  the  offer 

to  the  knowledge  of  the  person  offering  may  be  a  sufficient 
notice  of  acceptance.  Thus,  an  offer  to  buy  goods  or  an  order 
for  goods  may  be  accepted  by  the  shipment  and  delivery  of 
the  goods  without  a  formal  letter  of  acceptance,1  providing  such 
acceptance  be  in  due  season.2  But  this  form  of  acceptance, 
like  all  others,  unless  this  condition  be  waived,  must  correspond 
with  the  offer  made.  Hence  an  order  for  a  given  quantity  of 
goods  cannot  be  deemed  to  have  been  accepted,  so  as  to  bind 
the  person  ordering,  merely  by  the  shipment  of  a  less  quantity; 3 
though,  as  against  the  shipper,  the  sending  of  part  may  be  evi- 
dence of  an  acceptance  of  the  whole  order;4  nor  would  the 
person  ordering  the  goods  be  required  to  accept  a  less  quantity, 

1  Taylor  v.  Jones,  L.  R.  1  Com.  P.  firmed  this  order  by  letter.  Defend- 
Div  87;  Crook  v.  Cowan,  64  N.  C.  ant  replied  on  the  same  day:  "I  send 
743;  McCormick  Harvesting  Mach.  you  sample  of  wheat.  I  will  send 
Co.  v.  Richardson  (1893),  89  Iowa,  525,  one  car  soon,  and  if  satisfactory  will 
56  N.  W.  R.  6S2.  ship   more. '    I    ship    this    at    price 

2  As  to  which,  see  §§  244,  245.  named."  Plaintiff  replied thatsample 

3  Bruce  v.  Pearson  (1808),  3  Johns,  was  satisfactory,  and  urged  haste  in 
<_N.  Y.)  534.  sending  the  five  cars.     After  several 

4  Thus  in  Eckert  v.  Schoch  (1893),  days  and  more  urging,  defendant 
155  Pa.  St.  530,  26  Atl.  R.  654,  it  wrote:  "1  ship  one  car  to  Stemton 
appeared  that  defendant  wrote  to  on  this  day,  contents  444  bus.  Will 
plaintiff  as  follows:  "If  you  can  pay  ship  one  more  on  Monday."  No  more 
83£  c.  on  track  here  for  prime  Pa.  was  shipped,  and  defendant  denied 
wheat,  will  send  you  sample."  On  the  existence  of  any  agreement  for 
the  following  day  plaintiff  replied  five  cars.  The  court,  however,  held 
by  telegram:  "Ship  quick  five  cars  that  defendant  by  this  correspond- 
prime  red  wheat  to  Stemton  as  trial  ence  and  conduct  had  accepted  the 
lot."     On  same    day  plaintiff  con-  offer  for  five  cars. 

226 


OH.   VI.] 


CONTRACT    OF    SALE IN    GENERAL.       [§§  2i3,  244. 


but  if  he  does  accept  the  less  quantity  and  appropriates  the 
goods  to  his  own  use,  he  will  be  deemed  to  have  waived  the 
requirement  of  a  full  delivery  as  a  condition  precedent,  and  he 
will  be  liable  to  pkypro  tanto  for  the  part  actually  received.1 


§  243. 


So,  though  one  has  not  ordered  goods  shipped 


to  him,  yet  if,  with  knowledge  of  the  facts,  he  retains  them  and 
uses  them,  or  exercises  over  them  acts  of  ownership,  he  will  be 
deemed  to  have  assented  to  their  sale  to  him  and  will  be  liable 
as  a  purchaser.2 

§  244.  Time  of  acceptance. —  Where  the  period,  within  which 
an  offer  may  be  accepted  is  limited  by  the  terms  of  the  offer, 
the  offer,  if  not  withdrawn,  is  to  be  regarded  as  an  open  and 
continuing  one  during  that  period  only,  and  it  must  be  accepted, 
if  at  all,  within  the  time  so  fixed.  If  not  so  accepted  the  offer 
expires  by  its  own  limitations,  and  no  subsequent  acceptance 
will  suffice  unless  the  proposer  consents.1   Where,  on  the  other 


i  Oxendale  v.  WetherelL,  9  B.  &  C. 
386;  Richardson  v.  Dunn.  2Q.  B.  222; 
Hart  v.  Mills,  15  M.  &  W.  85;  Avery 
v.  Wills,,!!.  81  X.  Y.  341,  37  Am.  R.  503, 
distinguishing  Catlin  v.  Tobias,  26 
X.  Y.  217,  84  Am.  Dec.  183. 

2 Thompson  v.  Douglass,  35  W.  Va. 
337,  13  S.  E.  K.  1015. 

3 "An  acceptance  after  the  time 
limited  in  the  offer  will  not  bind  the 
person  making  the  offer,  unless  he 
assents  to  the  acceptance  so  made 
after  it  is  made.-'  Atlee  v.  Bartholo- 
mew, 69  Wis.  43,  33  N.  W.  R.  110,  5 
Am.  St.  R.  103,  citing  McCulloch  v. 
Eagle  Ins.  Co.,  1  Pick.  (Mass.)  378; 
Larmon  v.  Jordan,  56  111.  204;  Bos- 
ton, etc.  R.  R.  Co.  v.  Bartlett,  3  Cush. 
(Miiss.)  224:  Adams  v.  Lindsell,  1 
Rain.  &  Aid.  (Eng.)  681;  Eliason  v. 
Henshaw,  4  Wheat.  (U.  S.)  225.  "  In 
our  law  the  effect  of  naming  a  defi- 
nite time  in  the  proposal  is  simply  neg- 
ative and  for  the  proposer's  benefit: 


that  is,  it  operates  as  a  warning  that 
an  acceptance  will  not  be  received 
after  the  lapse  of  the  time  named. 
In  fact,  the  proposal  so  limited  comes 
to  an  end  itself  at  the  end  of  that 
time  and  there  is  nothing  for  the 
other  party  to  accept."  Union  Na- 
tional Bank  v.  Miller.  10fi  X.  C.  347, 
11  S.  E.  R  321,  19  Am.  St.  R.  538,  cit- 
ing Pollock  on  Contracts,  9;  Larmon 
v.  Jordan,  supra;  Boston,  etc.  R.  R. 
Co.  v.  Bartlett,  supra;  Mactier  v. 
Frith,  6  Wend.  (N.  Y.)  103,  21  Am. 
Dec.  262;  Cheney  v.  Cook,  7  Wis.  413; 
Maclay  v.  Harvey,  90  111.  525.  32  Am. 
R.  35;  Dunlop  v.  Higgins,  1  H.  L.  Cas. 
387.  See  also  Curtis  v.  Blair.  26  Miss. 
309,  59  Am.  Dec.  257;  Longworth  v. 
Mitchell,  26  Ohio  St.  334:  Potts  v. 
Whitehead,  20  N.  J.  Eq.  55:  Weaver 
v.  Burr.  31  W.  Ya.  736,  8  S.  E.  R.  743; 
Can-  v.  Duval.  14  Pet.  (39  U.  S.)  77. 

In  James  v.  Marion  Fruit  Jar  Co. 
(1896),  69  Mo.  App.  207,  the  offerer 


227 


§§  245,  246.]  law  of  sale.  [book  i. 

hand,  the  period  for  its  acceptance  is  not  fixed,  the  offer  must 
be  accepted  within  a  reasonable  time.1 

§  245.  .  What  is  a  reasonable  time  depends  here,  as  in 

other  cases,  upon  the  particular  circumstances  of  each  .individ- 
ual case.2  If  the  parties  are  present  and  personally  negotiat- 
ing, that  reasonable  time  will,  unless  further  time  is  granted, 
be  limited  to  the  period  of  such  negotiation,  and  if,  without, 
stipulating  for  further  time,  the  parties  separate  before  a  bar- 
gain is  concluded,  offers  then  made  will  be  deemed  to  be  with- 
drawn and  cannot  subsequently  be  accepted.3  Where  the  par- 
ties are  not  thus  personally  present  and  orally  negotiating,  but 
are  conducting  their  negotiations  otherwise,  as  by  letter  or  tel- 
egram, the  offer,  unless  previously  withdrawn,  will  be  deemed 
to  continue  until  the  letter  or  telegram  containing  it  is  received, 
and  the  party  addressed  has  had  a  fair  opportunity  to  answer 
it.4  The  subject  of  communication  by  letter  or  telegram  will 
be  more  fully  considered  in  a  later  section.5 

§246.  Question   of  acceptance,   how    determined. —  The 

question  whether  or  not  the  offer  has  been  accepted  is  one 
which  may  address  itself  to  the  court  or  jury  under  varying 
circumstances.     Where  the  negotiations  were  in  writing,6  or 

had  telegraphed  an  offer  saying  that  447,  11  Pac.  R.  441;  Ferrier  v.  Storer, 

prices  were  higher  and  advancing,  63  Iowa,  484,  19  N.  W.  R.  288. 

and  saying:  "  Wire  instantly  or  this  z  Martin  v.  Black,  supra;  Dunlop 

is  withdrawn."  This  message  reached  v.  Higgins,  supra;  Mactier  v.  Frith, 

the  town  of  its  destination  at  7:05  supra;   Loring    v.    Boston,   7    Mete. 

P.  M.  on  Saturday  evening,  but  was  (Mass.)  409;  Chicago,  etc.  Ry.  Co.  v. 

not  delivered  until  about  10  o'clock.  Dane,  43  N.  Y.  240;  Stone  v.  Har- 

At  10:15,  on  the  following  Monday,  nion,  31  Minn.  512,  19  N.  W.  R  88; 

the  offer  was  accepted  by  telegram.  McCurdy  v.  Rogers,  21  Wis.  197;  Judd 

The  offerer  responded:  "We  specified  v.  Day,  50  Iowa,  247. 

instant  answer.     Price  now  $2  per  3Averill  v.   Hedge,  12  Conn.  424; 

gross   higher."     Held,  that  the  ac-  Cooke  v.  Oxley,  3  T.  R.  653. 

ceptance  on  Monday  was  not  in  time.  4  Averill  v.  Hedge,  12  Conn.  424. 

1  Craig  v.  Harper,  3  Cush.  (Mass.)  &  See  post,  §  247  et  seq. 

158;  Beck  with  v.  Cheever,  21  N.  H.  6  Jordan  v.  Patterson,  67  Conn.  473, 

41;  Martin  v.  Black,  21  Ala.  721;  Chi-  35  Atl.  R.  521;  Eckert  v.  Schoch,  155 

cago,  etc.  R.  Co.  v.  Dane,  43  N.  Y.  Pa.  St.  530,  26  Atl.  R.  654;  James  v. 

240;  Trounstine  v.  Sellers,  35  Kan.  Marion  Fruit  Jar  Co.,  69  Mo.  App.  207. 

228 


CH.  VI.]  CONTRACT    OF    SALE IN    GENERAL.  [§  247. 

the  facts  are  not  disputed,  the  question  of  acceptance  is  one  of 
law  to  be  determined  by  the  court;  but  where  the  matter  is  to 
be  decided  by  reference  to  disputed  facts,  the  question  must  be 
regarded  as  for  the  jury. 

§  247.  Communication  by  mail,  telegraph, etc.— A  person 
who  makes  an  offer  by  mail,  telegraph  or  other  public  agency, 
thereby  adopts  it  as  his  agent  for  the  transmission  of  his  offer, 
and  he  therefore  assumes  the  risk  of  his  agent's  failure  to  de- 
liver the  message  promptly,  or  at  all,  and  also,  within  the  limits 
applicable  to  other  agents,  the  risk  of  his  agent's  failure  to  de- 
liver it  correctly.1  Such  an  adoption  of  a  public  agency  by  the 
proposer  is  also,  where  no  other  direction  is  given,  deemed 
equivalent  to  an  invitation  to  the  party  addressed  to  communi- 
cate his  reply  by  the  same  agency ;  and  it  is  well  settled,  there- 
fore, that  if  the  person  addressed  accepts  the  offer,  and,  in  due 
time,  finally  and  irrevocably  delivers  his  acceptance  to  the 
same  agency  to  be  transmitted  to  the  proposer,*  the  contract 
thereby  becomes  complete,  and  the  failure  of  the  adopted 
agency,  without  the  fault  of  the  acceptor,  to  transmit  the  ac- 
ceptance to  the  proposer,  either  promptly,  accurately,  or  at  all, 
does  not  change  the  result.3     If,  however,  this  failure  is  attrib- 

1  Saveland  v.  Green,  40  Wis.  431 ;  ceptance  is  not  of  itself  sufficient  to 
Scott  &  Jarnagin  on  Telegraphs,  complete  a  contract.  In  such  a  case 
§  345.  the  act  must  involve  an  irrevocable 

2  Thus  in  Trounstine  v.  Sellers,  35  element,  and  the  letter  must  be 
Kan.  447,  11  Pac.  R.  441,  it  is  said;  placed  in  the  mail,  or  the  telegram 
"  The  mere  determination  to  accept  deposited  in  the  office  for  transmis- 
an  offer  does  not  constitute  an  ac-  sion,  and  thus  placed  beyond  the 
ceptance  which  is  binding  on  the  power  or  control  of  the  sender,  before 
parties.  'The  assent  must  either  be  the  assent  becomes  effectual  to  con- 
communicated  to  the  other  party,  or  summate  a  contract;  and  not  then, 
some  act  must  have  been  done  which  unless  the  offer  is  still  standing." 
the  other  party  has  expressly  or  im-  srjunlop  v.  Higgins,  1  H.  L.  Cases, 
pliedly  offered  to  treat  as  a  commu-  381 ;  Household  F.  Ins.  Co.  v.  Grant, 
nication.'  (Benjamin  on  Sales,  54.)  4  Ex.  Div.  216,  6  Eng.  Rul.  Cas.  115, 
Where  parties  are  distant,  and  the  19  Rev.  R.  415;  Adams  v.  Lindsell,  1 
contract  is  to  be  made  by  oorre-  B.  &  Aid.  681,  6  Eng.  Rul.  Cas.  80; 
spondence.  the  writing  of  a  letter  or  In  re  Imperial  Land  Co.,  L.  R.  7  Ch. 
telegram  containing  a  notice  of  ac-  App.  587;  Townsends  Case,  L.  R.  13 

229 


§  248.] 


LAW    OF    SALE.  [BOOK    I. 


utable  to  the  fault  of  the  acceptor,  as  in  misdirecting  bis  reply, 
or  delaying  it  beyond  the  proper  time,  or  in  employing  careless 
agents  to  transmit  it,  the  contract  will  not  thereby  be  com- 
pleted.1 

§248.  Method  of  acceptance  in  these  cases.  — The 

adoption  by  the  proposer  of  a  given  agency  for  the  transmis- 
sion of  his  offer  is  often  deemed  to  be  not  only  equivalent  to 
an  invitation  to  reply  by  the  same  means,  as  stated  in  the  pre- 
ceding section,  but  also  to  be  a  conclusive  designation  of  that 
ao-ency  as  the  one  to  be  employed  in  the  transmission  of  the 
acceptance,  so  as  to  cast  upon  the  acceptor  the  risk  of  employing 
any  other.  Though  the  language  of  many  of  the  cases  appears 
to  give  countenance  to  this  idea,  it  is  nevertheless  to  be  re- 
garded as  too  narrow  a  view.  The  proposer  is  not,  of  course, 
responsible  for  the  fidelity  of  amj  agency  which  the  acceptor 
may  see  fit  to  employ;  but  where  the  proposer  does  not  stipu- 
late otherwise  he  must  ordinarily  be  held  to  invite  a  response 
by  the  usual  and  natural  agency  as  determined  by  the  circum- 
stances of  the  case.  Thus  where  an  offer  was  made  by  mes- 
senger, but  the  acceptance  was  by  mail,  after  the  mailing  but 
before  the  receipt  of  a  withdrawal  of  the  offer,  it  was  said  by 

Eq.  148;  Potter  v.  Sanders,  6  Hare,  1;  Moore  v.  Pierson,  6  Iowa,  279,  71  Am. 

Stocken  v.  Collin,  7  Mees.  &  Wels.  Dec.  409;  Ferrier  v.  Storer,  63  Iowa, 

515;  Hebb's  Case,  L.  R.  4Eq.  9;  Tay-  484,  50  Am.  R.  752,  19  N.  W.  R.  288; 

lor  v.  Insurance  Co.,  9  How.  (U.  S.)  Durkee  v.  Vermont  Cent.  R.  R.  Co., 

390;  Patrick  v.  Bowman,  149  U.  S.  29  Vt.  127. 

411.  37  L.  Ed.  790;  Trevor  v.  Wood,  In   Massachusetts   it  has    been 

36  N.  Y.  307,  93  Am.  Dec.  511;  Abbott  thou  ;ht  that  the  contract  was  not 

v.  Shepard,  48  N.  H.  14;  Hutcheson  complete  until  the  acceptance  was 

v.  Blakeman,  3  Mete.  (Ky.)  80;  Ham-  received.      McCulloch  v.  Eagle  Ins. 

ilton  v.  Insurance  Co.,  5  Barr  (Pa.),  Co.,  1  Pick.  278;  Lewis  v.  Browning, 

339:  Levy  v.  Cohen,  4  Ga.  1;  Falls  v.  130  Mass.  173.     But  is  this  true,  since 

Gaither,  9  Port.  (Ala.)  614;  Averill  v.  Brauer  v.  Shaw  (1897),  168  Mass.  198, 

Hedge,  12  Conn.  436;  Wheat  v.  Cross,  46  N.  E.  R.  617,  60  Am.  St.  R.  387? 

31   Md.    99,   1   Am.  R.   28;   Potts  v.  iMaclay  v.  Harvey.  90  I1L  525,32 

Whitehead,  20  N.  J.  Eq.  55;  Wash-  Am.  R.  35;  Thayer  v.  Insurance  Co.. 

burn  v.  Fletcher,  42  Wis.  152;  Haas  10  Pick.  (Mass.)  326;  Bryant  v.  Booze. 

v.  Myers,  111  I1L  421,  53  Am.  R.  634;  55  Ga.  438. 

230 


CH.  VI.]  COXTKACT    OF    SALE — IN    GENERAL.  [§  249. 

Lord  Hersehell,  in  the  English  court  of  appeal,1  that  "  where 
the  circumstances  are  such  that  it  must  have  been  within  the 
contemplation  of  the  parties  that,  according  to  the  ordinary 
usages  of  mankind,  the  post  might  be  used  as  a  means  of  com- 
municating the  acceptance  of  an  offer,  the  acceptance  is  com- 
plete as  soon  as  it  is  posted."  And  Kay,  L.  J.,  in  the  same 
case,  declared  the  rule  thus:  "  Posting  an  acceptance  of  an  offer 
may  be  sufficient  where  it  can  fairly  be  inferred  from  the  cir- 
cumstances of  the  case  that  the  acceptance  might  be  sent  by 
post."  The  same  rule  would  doubtless  extend  also  to  the  tele- 
graph.2 

Whether  the  agency  employed  is  a  "  natural  and  ordinary 
mode  of  transmitting  such  an  acceptance  "  is  said  to  be  a  ques- 
tion of  fact  for  the  jury.3 

§  '240. .  Of  course,  if  the  acceptance  is  actually  received  in 

due  time,  there  can  ordinarily  be  no  room  for  question  as  to  the 
suitability  of  the  agency  employed  in  transmitting  it;4  though 
if  the  proposer  directs  the  employment  of  a  particular  agency, 
he  could  not,  except  under  very  unusual  circumstances,  be 
charged  with  the  risk  of  any  other;  and  it  would  also  be  doubt- 
less competent  for  him  to  expressly  stipulate  that  he  should  not 
be  charged  unless  the  acceptance  came  through  a  specified 
channel,  whether  it  reached  him  or  not.5 

1  Hen  thorn  v.  Fraser,  [1892]  2  Ch.  27.  the  acceptance  should  be  transmitted 

In  Wilcox  v.  Cline  (1888),  rO  Mich,  by  mail." 

517,  38  X.  W.  R.  555,  an  oiler  of  sale  '2In   Perry  v.  Mt.  Hope  Iron   Co. 

was  made  by  writing  delivered  by  (1886),  15  R.  I.  380,  5  Atl.  R.  632,  2 

Cline  to    Wilcox   at   Bellefontaine,  Am.  St.  R  902,  an  offer  made  in  per- 

Ohio.    Wilcox  lived  at  Detroit,  Mich.,  son   was  left  open   for   acceptance 

and   Cline    at   Frederick   City.    Md.  until   next   day.     Plaintiff  lived   in 

Nothing  was  said  as  to  the  method  Providence,  R.  I.,  and  defendant  had 

of  acceptance,  but  Wilcox  had  a  pre-  its  office  in  Boston.    Plaintiff  sent  an 

scribed  time  within  which  to  accept,  acceptance  by  telegraph.    Held,  that 

and  after  the  delivery  of  the  offer  the  contract  was  completed  at  Prov- 

each  party  went  to  his  home.     Wil-  idence  when  the  telegram  was  sent, 

cox  afterwards,  indue  time,  accepted  3  In  Perry  v.  Mt.  Hope  Iron  Co., 

the  offer  by  mail.     Held,  sufficient,  supra. 

Said  the  court:  "  We  think  the  facts  *  Perry  v.  Mt.  Hope  Iron  Co.,  supra. 

show  conclusively  that  the  parties  5  See  Eliason  v.  Henshaw,  4  Wheat, 

intended  from  the   beginning  that  (17  U.  S.)  225. 

231 


250,  251.] 


LAW    OF    SALE. 


[COOK    I. 


§  250.  .  It  is  also  competent  for  the  proposer  to  stipu- 
late, either  expressly  or  impliedly,  that  he  is  to  be  bound  only 
in  case  the  acceptance  actually  reaches  him;  and  where  he  does 
this,  he  will  not  be  bound  unless  it  is  received,  even  though 
the  agency  employed  for  transmitting  the  reply  would  other- 
wise have  been  such  as  to  charge  him  with  the  risk.1 


§  251.  Time  of  acceptance  in  these  cases. —  The  due 

time  within  which  the  acceptance  must  be  transmitted  depends 
upon  the  principles  stated  in  a  preceding  section.2  If  the  time 
be  limited,  either  by  express  words  or  the  nature  of  the  subject, 
or  the  evident  intention,  the  answer  must  be  transmitted  within 
that  time.3     In  other  cases  the  answer  must  be  transmitted 


1  Lewis  v.  Browning.  130  Mass.  173 
[citing  Theisiger,  L.  J.,  in  Household, 
etc.  Ins.  Co.  v.  Grant,  4  Ex.  Div.  223; 
Pollock  on  Contracts  (2d  ed.),  17; 
Leake  on  Contracts,  39,  note].  In 
this  case  the  proposer  had  written 
that,  if  he  did  not  hear  from  the  other 
by  a  given  date,  he  should  conclude 
that  his  offer  was  not  accepted.  To 
like  effect:  Haas  v.  Myers,  111  111. 
421,  53  Am.  R.  634;  Vassar  v.  Camp, 
11  N.  Y.  441. 

2  See  ante,  §  244. 

3  In  Dunlop  v.  Higgins,l  H.  L.  Cas. 
387,  the  Lord  Chancellor  says: 
"Where  an  individual  makes  an 
offer  by  post,  stipulating  for,  or  by 
the  nature  of  the  business  having  a 
right  to  expect,  an  answer  by  return 
of  post,  the  offer  can  only  endure  for 
a  limited  time,  and  the  making  of  it 
is  accompanie'd  by  an  implied  stipu- 
lation that  the  answer  shall  be  sent 
by  return  of  post.  If  that  implied 
stipulation  is  not  satisfied,  the  person 
making  the  offer  is  released  from  it. 
When  a  person  seeks  to  acquire  a 
right,  be  is  bound  to  act  with  a  de- 
gree of  strictness  such  as  may  not 
be  required  where  he   is  only  en- 


deavoring to  excuse  himself  from  a 
liability."  Where  the  nature  of  the 
business  demanded  a  prompt  answer, 
it  was  held  that  the  words  "you  will 
confer  a  favor  by  giving  me  your 
answer  by  return  mail,"  do,  in  effect, 
stipulate  for  an  answer  by  return 
mail.  Maclay  v.  Harvey,  90  111.  525, 
32  Am.  R.  35,  citing  Taylor  v.  Rennie, 
35  Barb.  (N.  Y.)  272.  Where  an  offer 
by  telegraph  states  that  the  sender 
"  must  have  reply  early  to-morrow,'' 
a  reply  sent  late  in  the  evening  of 
that  day  is  not  in  time.  Union  Na- 
tional Bank  v.  Miller,  106  N.  C.  347, 
19  Am.  St.  R.  538,  11  S.  E.  R.  321. 

In  case  of  a  proposition  by  tele- 
graph to  sell  certain  goods,  the  mar- 
ket for  which  was  subject  to  sudden 
and  great  fluctuations,  an  immediate 
answer  should  be  returned,  and  an 
acceptance  of  such  pi-oposition  tele- 
graphed after  a  delay  of  twenty-five 
hours  from  the  time  of  its  receipt 
was  not  an  acceptance  within  a  rea- 
sonable time  and  did  not  operate  to 
complete  the  contract.  Minnesota 
Linseed  Oil  Co.  v.  Collier  White  Lead 
Co.,  4  Dill.  (U.  S.  C.  C.)  431. 

Where  a  telegram  making  an  offer 


232 


en.  vi.] 


CONTRACT    OF    SALE IN    GENERAL. 


[§  251. 


within  a  reasonable  time,1  or,  as  stated  in  a  case  already  re- 
ferred to,2  the  offer  will  remain  open  only  until  the  party  ad- 
dressed has  had  a  fair  opportunity  to  answer  it.  If  the  delivery 
of  the'  offer  was  delayed  by  the  fault  of  the  sender,  the  time 
for  its  acceptance  dates  from  its  actual  receipt,  even  though  the 
sender  may  in  the  meantime  have  sold  the  goods  to  others,3 


demanded  an  instant  acceptance,  but 
was  not  received  until  ten  o'clock  on 
Saturday  night,  and  the  answer  was 
delayed  until  Monday,  the  delay  was 
in  this  case  unreasonable,  and  the 
acceptance  did  not  bind.  The  court 
siid:  "This  offer  plaintiffs  received 
on  Saturday  night  at  10  P.  M.,  but 
instead  of  wiring  back  their  accept- 
ance that  night  through  the  same 
agency,  as  they  might  have  done, 
they  delayed  action  until  the  second 
day  thereafter.  It  is  true  that  the 
next  day  was  Sum  lay,  but  no  reason 
was  shown  why  acceptance  was  not 
wired  back  on  the  evening  of  the  re- 
ceipt of  the  offer.  If  the  time  for 
acceptance  had  not  been  Limited  by 
the  terms  of  the  offer,  the  delay  of 
acceptance  doubtless  would  not, 
under  the  circumstances,  be  deemed 
unreasonable  or  untimely.  But  the 
plaintiffs  were  admonished  by  the 
very  terms  of  the  offer  that  prompt 
and  immediate  action  was  required 
of  them  if  they  desired  to  accept  the 
defendant's  offer,  and  that  if  they 
did  not  so  act  the  offer  was  with- 
drawn. They  were  warned  in  the 
same  connection  that  the  prices  were 
advancing,  and  that  there  was  an 
emergency  calling  for  prompt  and 
immediate  action  on  their  part.  We 
feel  justified  in  ruling,  as  a  matter 
of  law,  that  the  acceptance  of  the 
plaintiffs,  thirty-six  hours  after  the 
receipt  of  the  offer,  even  under 
the  circumstances  shown  by  the  evi- 
dence, was  not  an  acceptance  within 


the  time  required  by  the  terms  of 
the  offer  itself.  The  defendant  had 
a  perfect  right,  by  the  terms  of  the 
offer,  to  limit  the  time  for  its  ac- 
ceptance. The  time  for  acceptance 
Bp  iiii'd  in  the  offer  was  as  much  a 
term  thereof  as  the  price,  or  the  kind 
and  quantity  of  the  goods.  After 
the  specified  time  passed  without  ac- 
ceptance the  offer  was  determined. 
Clark  on  Contracts,  30,  40,  52.  It 
follows  from  these  observations  that 
the  acceptance  of  the  plaintiffs  had 
no  effect."  James  v.  Marion  Fruit 
Jar  Co..  60  Mo.  App.  807. 

1  Dunlop  v.  Higgins,  1  H.  L.  Cas. 
387;  Duncan  v.  Topham.  8  Com. 
Bench,  325;  Minnesota  Oil  Co.  v.  Col- 
lier White  Lead  Co.,  4  Dill.  (U.  S. 
C.  C.)  431;  Stockham  v.  Stockham, 
32  M.l.  196;  Abbott  v.  Shepard,  is 
X.  BL  14, 

An  offer  by  letter,  dated  May  16, 
1884,  and  made  by  the  offerer  "solely 
from  a  feeling  of  friendship"  towards 
the  offeree,  to  purchase  certain 
shares  of  stock  "at  anytime  after 
January  1,  1886,  if  at  that  time  "  the 
latter  shall  so  desire,  must  be  ac- 
cepted by  that  date  or  within  a  rea- 
sonable time  thereafter,  and  an  ac- 
ceptance  of  the  offer  sent  on  July  0, 
1886,  is  not  within  a  reasonable  time. 
Park  v.  Whitney,  14*  Mass.  278,  19 
N.  K.  R.  161. 

-1  Averill  v.  Hedge,  12  Conn.  424, 
citing  Mactier  v.  Frith,  6  Wend. 
(X.  Y.)  103,  21  Am.  Dec.  262. 

3  Adams  v.  Lindsell,  1  B.  &  Aid.  681. 


233 


§§  252,  253.]  la.\v  of  sale.  [book  i. 

unless  the  fact  of  the  delay  be  obvious  to  the  receiver  and  he 
could  not  reasonably  rely  upon  it  as  continuing  without  in- 
quiry. 

§  252.  Right  to  withdraw  offer. —  A  mere  offer  to  enter 
into  a  contract  can,  evidently,  operate  only  during  the  period 
of  its  continuance.  The  very  purpose  of  its  making,  however, 
contemplates  that  it  shall  continue  until  the  other  party  can 
act  upon  it,  unless  it  sooner  expires  by  its  express  or  implied 
limitations,  or  is  sooner  revoked.  But,  being  purely  voluntary, 
it  is  equally  obvious  that  the  party  making  the  offer  may  re- 
tract it  at  any  time  before  it  has  ripened  into  a  contract  by 
acceptance.1  As  stated  by  Lush,  J.,  of  the  Queen's  Bench  Di- 
vision:2 "It  is  clear  that  a  unilateral  promise  is  not  bind- 
ing, and  that  if  a  person  who  makes  an  offer  revokes  it  before 
it  has  been  accepted,  which  he  is  at  liberty  to  do,  the  negotia- 
tion is  at  an  end.3  But  in  the  absence  of  an  intermediate  revo- 
cation, a  party  who  makes  a  proposal  by  letter  to  another  is 
considered  as  repeating  the  offer  every  instant  of  time  till  the 
letter  has  reached  its  destination  and  the  correspondent  has 
had  a  reasonable  time  to  answer  it.4  'Common  sense  tells  us,' 
said  Lord  Cottenham,5  '  that  transactions  cannot  go  on  without 
such  a  rule.'  It  cannot  make  any  difference  whether  the  nego- 
tiation is  carried  on  by  post,  or  by  telegraph,  or  by  oral  mes- 
sage. If  the  offer  is  not  retracted,  it  is  in  force  as  a  continuing 
offer  till  the  time  for  accepting  or  rejecting  it  has  arrived. 
But,  if  it  is  retracted,  there  is  an  end  of  the  proposal." 

§  253.  Voluntary  offer  may  be  retracted,  though  time 

given  for  its  acceptance. —  It  is  equally  true  that  a  voluntary 

i  Cooke  v.  Oxley,  3  T.  R.  653;  Ste-  2In  Stevenson  v.  McLean,  L.  R.  5 

venson  v.  McLean,  5  Q.  B.  Div.  346;  Q.  B.  Div.  346. 

Dickinson  v.  Dodds,  2  Ch.  Div.  463;  3  Citing  Routledge  v.  Grant,  4  Bing. 

Byrne  v.  Van  Tienhoven,  5  C.  P.  Div.  653. 

344;  Bristol  Bread  Co.  v.   Maggs,  44  4  Citing  Adams  v.  Lindsell,  1  B.  & 

Ch.  Div.  616;    Larmon  v.  Jordan,  56  A.  681. 

111.  204;  Paddock  v.  Davenport.  107  5In  Dunlap  v.  Higgins,  1  H.  L.  Cas. 

N.  C.  710,  12  S.  E.  R.  464;   Bosshardt  381. 
&  Wilson  Co.  v.  Crescent  Oil  Co.,  171 
Pa.  St.  109,  32  Atl.  R.  1120. 

234 


OH.  VI. J 


OONTEAOT   OF   SALE   —  I2S    GENEEAL.       [§§  254,255. 


offer  may  be  retracted  at  any  time  before  acceptance,  even 
though  the  proposition  was  in  writing,  and  the  proposer  lias 
expressly  stated  that  he  would  permit  the  offer  to  remain  open 
for  a  given  period,  which  has  not  yet  expired.1  The  promise 
to  allow  time  for  acceptance,  being  without  consideration's, 
of  course,  merely  nudwm  pactum, &nd  the  offer  may  be  revoked 
by  the  proposer  before  acceptance  without  legal  liability. 


§  254. 


Voluntary  offer   may  be  revoked  though  de- 


clared irrevocable.— So  a  voluntary  offer,  as,  for  example,  an 
order  for  goods,  may  be  revoked  at  any  time  before  acceptance, 
even  though  it  may  have  been  in  writing,  and  contained  an 
express  stipulation  that  it  should  be  irrevocable.2  Such  a  con- 
dition, being  without  consideration,  stands  upon  no  better 
ground  than  the  offer  or  order  itself. 


§  255. 


Unaccepted  offer  does  not  constitute  such  a 


contract  as  to  exclude  parol  evidence.— So  a  written  offer 
or  order,  before  acceptance,  docs  not  constitute  such  a  written 
contract  between  the  parties  as  will  exclude  parol  evidence  as 
to  other  stipulations  which  are  not  included  in  the  order.3 

i  Routledge  v.  Grant,  I  Bing.  863;  !»::  Mich.  328,  53  X.  W.  R.  555,  are  to 

Dickinson  v.  Dodds,  2  Ch.  I»i\.  163;  the  same  effect 
Cheney  v.  Cook,  7  Wis.  US;  School        ;  in  Weiden  v.  Woodruff,  38  Mich. 

Directors   v.  Trefethren,  10   Bradw.  130,    Woodruff   Bought    to    recover 

(111.)    187;   Weiden   v.    Woodruff,  38  upon  an  order  addressed  to  him  stat- 

Mich.    ISO;    Burton  v.  Shotwell,   13  ing:  "You  will  please  send  mi 


Bush  k\..  371;  Tucker  v.  Law- 
rence, 56  \'t.  167;  Quick  v.  Wheeler, 
r8  X.  V.  800;  Bosshardt  &  Wilson 
e'e  v.  Crescent  I  Ml  Co.,  1 7 1  Pa.  St 

Id'.'.  ::•->  Atl.  R,  1100. 
-This  is  well  illustrated,  as  is  also 

th«'  rule  of  the  following  section,  by 

the  recent  case  of  National  Refining 

To.  x.  Miller.  1  S.  I  >.  :.  IS   IT   N.  W.  R, 


vanized  lightning  rods  for  my  house, 

within  sixty  days,  lor  which  1  will 
give  you  thirty-tive  cents  per  foot,  due 
when  work  is  completed.  II.  Wei- 
den." Plaintiff  proved  that  under 
this  order  he  had  delivered  two  hun- 
dred and  six  feet  of  lightning  rod. 
Defendant,  claiming  that  this  writ- 
ten instrument  did  net  constitutes 


962,  where  it  was  expressly  stipulated  complete  binding  contract  between 
that  the  oiler  (an  order)  should  not  the  parties,  offered  to  prove  the  con- 
be  subject  to  countermand.     Peckv.  versation  between  plaintiff's  agent 
Preese,  lot  Mich.  321,  ■">!'  X.  W.  \i.  600,  ;,nd  defendant  at  the  time  tin- 
and  Challenge  Wind  Mill  Co  v.  Kerr,  was  given;  that  defendant  reserved 


§  256.] 


LAW    OF    SALE. 


[BOOK   I. 


§  256.  Agreement  upon  consideration  not  to  with- 

draw  offer. —  It  is  undoubtedly  competent  for  the  parties,  upon 
a  sufficient  consideration,  to  agree  that  the  offer  shall  not  be 
withdrawn  within  a  specified  time,  and  such  an  agreement  is 
binding.  The  consequences  of  the  breach  of  such  an  agree- 
ment are,  however,  material.  If  the  offer  be  a  mere  proposal 
to  enter  into  a  contract,  and  the  proposer,  in  violation  of  his 
agreement  to  leave  the  proposal  open,  refuses  to  do  so,  and  re- 
vokes it,  he  is  clearly  liable,  but  his  liability  will  be,  not  for 
the  breach  of  the  contract  which  was  never  made,  but  for  the 
breach  of  the  agreement  to  leave  the  offer  open  so  that  such  a 
contract  might  be  made.  No  title  to  the  chattel  to  be  sold 
could  pass  by  such  an  agreement  because  no  contract  of  sale 
has  been  entered  into.  This  must  also  be  the  result  in  every 
case  in  which  the  proposal  does  not  amount  to  a  present  offer 
of  sale  that  requires  no  further  act  on  the  part  of  either  party 
than  a  mere  acceptance  according  to  its  terms.     If,  however, 


the  right  to  countermand  the  order 
within  sixty  days;  that  he  did  in 
fact  within  that  time,  and  before 
any  of  the  rod  was  delivered,  act- 
ually countermand  the  order;  and 
he  further  offered  to  prove  that  at 
the  time  the  order  was  given  the 
number  of  feet  of  rod  to  be  delivered 
was  agreed  upon.  This  evidence  was 
all  objected  to  and  excluded,  and 
plaintiff  recovered  judgment  for  the 
amount  claimed. 

Said  the  court:  "I.  This  written 
order  did  not  constitute  such  a  writ- 
ten contract  between  the  parties  as 
would  exclude  parol  evidence,  or  pre- 
vent the  defendant  from  showing 
any  further  agreement  entered  into 
between  the  parties  at  the  time  the 
order  was  given,  and  not  embraced 
therein.  Richards  v.  Fuller,  37  Mich. 
161;  Phelps  v.  Whitaker,  37  Mich.  72, 
and  cases  there  cited. 

"II.  This  instrument  was  but  a 
mere    order.      Woodruff    was    not 

236 


bound  by  it  in  any  way  to  deliver 
any  rod.  Until  accepted  by  him  it 
was  not  binding  upon  either  party. 
Woodruff  testified  that  he  passed 
upon  all  orders  taken  by  his  agents; 
if  he  considered  the  parties  good  he 
delivered  the  orders,  and  that  if  he 
doubted  the  responsibility  of  the 
party  who  gave  the  order,  he  had  the 
right  to  reject  it.  Under  such  cir- 
cumstances it  is  preposterous  to  say 
that  there  was  a  valid  binding  con- 
tract between  the  parties  before 
Woodruff  had  accepted  the  order, 
and  in  some  way  notified  the  defend- 
ant of  that  fact.  Even  independent 
of  such  testimony,  before  an  actual 
acceptance  and  notice  thereof,  the 
defendant  had  the  right  to  withdraw 
his  order.  It  is  similar  to  an  order 
given  a  merchant  for  goods,  which, 
before  acceptance,  the  party  would 
have  a  right  to  withdraw.  1  Par- 
sons on  Con.  (5th  ed.)  483." 


CH.  VI.]  CONTRACT    OF    SALE  —  IN    GENERAL.  [§  257. 

the  proposal  is  such  a  complete  offer  of  present  sale,  an  accept- 
ance of  it  within  the  time  specified  may  operate  to  transfer 
the  title  notwithstanding  an  attempted  revocation  of  the  offer 
by  the  proposer. 

§  257.  How  offer  revoked  —  Revocation  must  be  act- 
ually communicated.— While  the  offer  is,  in  general,  as  has 
Just  been  seen,  subject  to  revocation  by  the  proposer  at  any 
time  before  it  is  accepted,  it  is  obvious  that  such  revocation, 
during  the  time  that  the  offer  might  otherwise  be  accepted, 
must,  in  order  to  be  effectual,  be  communicated  to  the  other 
party.1  The  offer  has  been  communicated  to  the  latter  for  the 
purpose  of  obtaining  his  acceptance  of  it.  ami,  clearly,  if  it  is 
to  be  withdrawn  from  his  consideration  during  the  period  in 
which  he  would  otherwise  be  still  invited  to  accept  it,  the  fact 
of  such  withdrawal  must  in  some  way  be  brought  home  to  him. 

No  particular  method  of  communicating  the  fact  of  the  rev- 
ocation would  ordinarily  be  requisite.  Notice  might  be  given 
expressly,  or  the  fact  might  be  made  apparent  from  acts  and 
conduct  leading  necessarily  to  that  conclusion;  as  where  one 
who  has  offered  a  specific  chattel  for  sale  to  A,  sells  it  to  13,  as 
A  knows,  before  the  latter  has  accepted  the  offer.2     The  death 

1  Stevenson  v.  McLean,  5  Q.  B.  Div.  sell  property,  which  can   be  with- 

846;  Byrne  v.  Van.  Tienhoven,  5  Com.  drawn  at  any  time,  and  which  is 

PI.  Div.  344;  Tayloe  v.  .Merchants' F.  made  dependent  on  the  acceptance 

Ins.  Co.,  9  How.  (U.  S.)  390.  of  the  person  to  whom  it  is  made,  is 

1  In  Dickinson  v.  Dodds,  2  Ch.  Div.  a  mere  nudum  pactum,  how  is  it  pos- 

463,   Mellish,   J.,  says:    "If   a    man  sible  that  the  person  to  whom  the 

makes  an  offer  to  sell  a  particular  offer  has  been  made  can  by  accept- 

horse  in  his  stable,  and  says  '  I  will  ance  make  a  binding  contract  after 

give  you  until  the  day  after  to-mor-  he  knows  that  the  person  who  has 

row  to  accept  the  offer,'  and  the  next  made  the  offer  has  sold  the  property 

day  goes  and  sells  tbe  horse  to  some-  to  some  one  else?   It  is  admitted  law 

body  else,  and  receives  the  purchase-  that,  if  a  man  who  makes  an  offer 

money  from  him,  can  the  person  to  dies,  the  offer  cannot  be  accepted 

whom  the  offer  was  originally  made  after  he  is  dead;  and  parting  with 

then  come  and  say  'I  accept,'  so  as  the  property  has  very  much  the  same 

to  make  a  binding  contract,  and  so  effect  as  the  death  of  the  owner,  for 

as  to  be  entitled  to  recover  damages  it  makes  the  peril  >rmance  of  the  offer 

for  the  non-delivery  of  the  horse?   If  impossible.     I  am  clearly  of  opinion 

the  rule  of  law  is  that  a  mere  offer  to  that,  just  as  when  a  man  who  has 

237 


§§258,259.]  law  or  sale.  [book   i. 

of  the  proposer  will  also  operate  as  a  revocation ; 1  as  would 
doubtless,  in  many  cases,  his  subsequently  occurring  insanity2 
or  bankruptcy.3 

§  258.  Mailing  letter,  etc.,  not  enough. —  Where  the 

offer  was  made  by  mail  or  telegraph,  the  requirement  of  actual 
communication  oP  its  withdrawal  applies  with  full  vigor,  and 
it  is  abundantly  settled  that,  unlike  the  case  of  the  acceptance, 
the  mere  depositing  of  the  letter  of  withdrawal  in  the  post- 
office,  or  the  delivery  of  a  message  to  the  telegraph  company 
for  transmission,  will  not  operate  a  revocation,  and  the  offer 
will  remain  open  until  the  notice  of  its  revocation  is  actually 
received.4 

If,  therefore,  an  acceptance  of  the  offer  has  been  duly  mailed, 
it  wdl  not  be  affected  by  a  revocation  of  the  offer  mailed  be- 
fore the  acceptance  was  mailed,  but  not  received  until  after- 
wards.5 The  acceptance  made  by  the  post  is  not  affected  by 
the  fact  that  a  letter  of  revocation  is  on  its  way.  This  would 
be  true,  moreover,  even  though  the  letter  of  acceptance,  duly 
mailed,  were  delayed  or  never  received.6 

§  259.  Offer  under  seal. —  "An  exception  to  the  gen- 
eral rule  as  to  the  revocability  of  an  offer,"  says  Sir  William 

made  an  offer  dies  before  it  is  ac-  3  See  Mechem  on  Agency,  §  263. 

cepted,  it  is  impossible  that  it  can  be  4  Stevenson  v.  McLean,  5  Q.  B.  Div. 

then  accepted,  so  when  once  the  per-  346;  Tayloe  v.  Merchants*  F.  Ins.  Co., 

son   to  whom  the  offer  was  made  9  How.  (U.  S.)  390;  Wheat  v.  Cross, 

knows  that  the  property  has  been  31  Md.  99,  1  Am.  R.  28;  Kerftpner  v. 

sold  to  someone  else,  it  is  too  late  for  Cohn,  47  Ark.  519,  58  Am.  R.  775,  1  S. 

him  to  accept  the  offer."    Followed  W.  R.  869;  Sherwin  v.  National  Cash 

in  Coleman   v.  Applegarth,  68  Md.  Register  Co.,  5  Colo.  App.  162,  38  Pac. 

21,  6  Am.  St.  R.  417.     To  like  effect:  R.  392. 

School  Directors  v.  Trefethren,    10  5  Byrne  v.  Van  Tienhoven  (1880),  5 

Bradw.  (111.)  127.     See  also  Gilbert  v.  Com.  PI.  Div.  344.  49  Law  Jour.  Com. 

Holmes,  64  111.  548:  Ahern  v.  Baker,  PI.  316,  42  Law  Times,  371;  Henthorn 

34  Minn.  98,. 24  N.  W.  R.  341;  Walker  v.  Fraser,  [1892J  2  Ch.  27,  C.  A. 

v.   Denison,    86  111.  142;    Bissell    v.  <"Dunlop  v.  Higgins  (1848),  1  H.  L. 

Terry,  69  111.  184.  Cas.  381;  Household,  etc.  Ins.  Co.  v. 

!See    preceding    note;    Anson  on  Grant   (1879),  4  Ex.  Div.  216,  48   L. 

Contracts  (7th  ed.),  27.  Jour.  Ex.  577,  41  L.  Times,  298,  6  Eng. 

2  See  Mechem  on  Agency,  §  254.  Rul.  Cas.  115. 

238 


CH.  VI.]  CONTRACT    OF    SALE — IN    GENERAL.       [§§  260,  201. 

Anson,  "  must  be  made  in  the  case  of  offers  under  seal.  Such 
an  offer  cannot  be  revoked:  even  though  it  is  not  communi- 
cated  to  the  offeree  it  remains  open  for  his  acceptance  when 
he  becomes  aware  of  its  existence."1 

260.  Lapse  of  otter  —  Notice.—  Where  the  offer  was, 

by  its  express  terms,  to  remain  open  for  a  prescribed  period,  it 
will,  unless  previously  accepted,  lapse  and  expire  by  its  own 
limitation  at  the  expiration  of  that  period,  and  no  notice  of 
such  expiration  is  necessary.2  So  though  no  time  was  expressly 
prescribed,  the  offer  must,  as  has  been  seen,  be  accepted  if  at 
all  within  a  reasonable  time,  and  if  not  so  accepted  it  also  will 
lapse  and  expire  without  notice  when  that  reasonable  time  has 
expired.3 

But  where  the  offer  is  thus  one  which  may  be  accepted  within 
a  reasonable  time,  and  the  other  party  signifies  his  acceptance 
of  it  within  a  time  which  he  could  fairly  have  supposed  to  be 
reasonable,  good  faith,  it  is  held,4  requires  that  the  proposer,  if 
he  intends  to  retract  on  account  of  the  delay,  shall  make  known 
that  intention  promptly.  "  If  he  does  not,  he  must  be  regarded 
as  waiving  any  objection  to  the  acceptance  as  being  too  late." 

§  261.  Waiver  of  revocation. —  A  party  who  has  taken 

all  necessary  steps  to  withdraw  an  offer  may,  nevertheless,  with 
the  consent  of  the  other  party,  waive  his  revocation  and  com- 
plete the  contract.  If,  therefore,  a  person  who  has  ordered 
goods  withdraws  his  offer,  but,  on  being  advised  that  the  goods 
have  been  shipped,  is  requested  to  receive  them  and  hold  for 
further  advice,  and  does  receive  the  goods  and  disposes  of  them 
as  his  own,  the  withdrawal  will  be  deemed  to  have  been  waived 
by  both  parties,  and  the  vendor  cannot  treat  the  contract  as 
thereby  rescinded.5 

i  Anson  on  Contracts  (7th  ed.),  30,  *  Phillips  v.  Moor  (1880),  71  Me.  78. 
citing  Doe  v.  Knight,  5  B.  &  C.  71:  5  Sullivan  v.  Sullivan.  70  Mich.  583, 
Xenos  v.  Wickham,  L.  R.  2  H.  L.  21)0.     38  N.  W.  R  472,  70  Mich.  101,  42  N. 

2  Leake  on  Contracts  1 1878),  p.  40.        W.  R.  1090. 

8  See  Ramsgate  Hotel  Co.  v.  Monte- 
fiore,  L.  R,  1  Exch.  109. 

239 


§§  262,  203.]  LAW  OF  SALE.  [book  I. 

§  262.  Withdrawal  of  acceptance.— "An  acceptance,  while 
in  course  of  communication,"  says  Mr.  Leake,1  "may  be  inter- 
cepted in  fact,  or  may  be  revoked  by  an  actual  communication 
to  that  effect  before  the  acceptance  is  received ;  but  as  the  com- 
munication of  the  acceptance  completes  the  contract,  it  cannot 
afterwards  be  revoked  without  the  consent  of  the  other  party. 

"  A  letter  once  posted  cannot  be  withdrawn  by  reason  of  the 
regulations  of  the  postoffice;2  but  the  operation  of  the  letter 
may  be  revoked  by  any  other  means,  if  possible,  before  it  is 
actually  delivered.3  Thus,  if  a  letter  accepting  a  proposed  con- 
tract be  posted,  and  a  subsequent  letter  recalling  the  accept- 
ance be  also  posted,  and  arrive  at  the  same  time  with  the  former 
letter,  there  is  no  contract.4  A  revocation  or  change  of  inten- 
tion as  to  acceptance,  not  communicated  until  after  the  accept- 
ance is  complete,  is  void  of  operation." 

II. 

Of  Unilateral  Contracts. 

§263.  Unilateral  contracts  —  Options. —  Closely  allied  to 
the  subject  of  the  preceding  sections  is  that  of  the  so-called 
option  or  unilateral  agreement,  which  presents  itself  in  various 
forms,  but  usually  in  that  of  an  undertaking  by  one  party  to  sup- 
ply such  goods  as  the  other  may  require  during  a  given  period, 
though  such  other  party  may  not  bind  himself  to  take  any. 

Upon  this  subject  Mr.  Bishop  uses  strong  language,5  saying 
that  "  unless  both  are  bound,  so  that  an  action  could  be  main- 
tained by  either  against  the  other  for  a  breach,  neither  will  be 
bound.6  This  proposition  is  absolutely  axiomatic,  not  admitting 
of  being  overthrown  by  authorities,  so  long  as  the  law  requires 
something  of  value  as  a  consideration ;  for,  where  it  is  admitted 

1  Leake  on  Contracts  (1878),  p.  46.     Shaw  &  Dunlop  (Scotch),  190;  Lang- 

2  In  the  United  States  the  practice     dell's  Cas.  on  Contr.  112. 

is  often  otherwise.  5  Bishop  on  Contracts,  §  78. 

3  Citing  Cockburn,  C.  J.,  in  New-  6  Citing  Stiles  v.  McClellan,  6  Colo, 
combe  v.  De  Eoos,  2  El.  &  El.  271.         89;    Townsend  v.   Fisher,   2  Hilton 

*Dunmore  v,  Alexander  (1830),  9    (N.  Y.),  47;  Ewins  v.  Gordon,  49  N.  H. 

444. 
240 


CH.  VI. J 


CONTRACT    OF    SALE IN    GENERAL 


[§  263. 


that  there  is  nothing  for  A's  promise  to  rest  on  butB's  promise, 
if  B  has  not  promised,  A's  promise  rests  on  nothing,  and  is  void. 
There  may  be  cases  in  seeming  contradiction  to  this;  if  there 
are  any  really  so,  they  are  not  to  be  followed.     In  one  case,1 


1  Great  Northern  Ry.Co.  v.  Witham, 
L.  R.  9  C.  P.  16,  7  Eng.  R.  130. 

In  Campbell  v.  Lambert,  36  La. 
Ann.  35,  51  Am.  R  1.  the  parties 
signed  a  paper  in  which  they  de- 
clare.I  that  they  had  "mutually 
agreed  with  each  other  "that  Lam- 
bert should  furnish  and  deliver  to 
Campbell  such  quantities  of  coal  as 
the  latter  might  require  during  a 
certain  year  "to  the  extent  of sixty 
thousand  barrels,  with  the  privilege 
of  twenty  thousand  barrels  or  more, 
to  be  delivered  with  dispatch  in  such 
quantities  and  at  such  places"  as 
Campbell  should  designate,  Lambert 
to  receive  a  certain  price  per  barrel 
payable  at  the  end  of  each  month. 
Lambert  delivered  thirty-three  thou- 
sand three  hundred  and  forty-five 
barrels,  and  then,  owing  to  a  great 
increase  in  price  and  large  and  rapid 
orders  from  Campbell,  refused  to  de- 
liver more.  Campbell  thereupon  de- 
manded the  balance  of  the  eighty 
thousand  barrels,  and  upon  failure 
to  deliver  sued  for  the  difference  be- 
tween the  contract  price  and  the 
then  market  price.  "But  on  plaint- 
iff's own  theory."  said  the  court,  "it 
is  manifest  that  the  agreement  is  a 
nudum  pactum.  We  scan  its  pro- 
visions in  vain  to  find  the  imposition 
on  Campbell  of  any  obligation  to 
take  or  pay  for  any  amount  of  coal 
whatever.  He  undertakes  nothing, 
except  to  pay  at  the  end  of  each 
month  for  such  coal  as  he  may  have 
chosen  to  order.  One  promise  may 
be  a  good  consideration  for  another 
promise,  but  not  '  unless  there  is  an 


absolute  mutuality  of  engagement. so 
that  each  party  has  the  right  at  once 
to  hold  the  other  to  a  positive  agree- 
ment' 1  Pars.  Cont,  448.  Thus  it 
has  been  held  that  a  written  agree- 
ment to  give  A  the  refusal  of  a  lease 
of  a  farm  at  a  stipulated  rent,  with 
no  agreement  on  the  part  of  A  to 
take  it,  and  no  other  consideration, 
is  void.  Burnet  v.  Biseo.  4  Johns. 
235.  So  a  contract  in  writing  to  con- 
vey lands  at  a  fixed  price  and  within 
a  stated  time,  where  the  other  party 
did  not  himself  take  and  nothing 
was  paid  or  agreed  to  to  be  paid  by 
him,  was  held  void.  Bean  v.  Bur- 
bank,  16  Me.  458,  Again,  where  the 
purchaser  at  an  execution  sale  gave 
the  defendant  a  written  promise  to 
reconvey  upon  the  payment  of  a 
specified  sum  by  a  day  named,  but 
the  defendant  did  not  bind  himself 
to  make  such  payment,  the  promise 
was  held  to  be  without  considera- 
tion. Mers  v.  Franklin,  68  Mo.  127. 
The  following  case  is  yet  more  ex- 
actly in  point,  viz.:  It  was  held  that 
a  written  agreement  under  which 
one  party  was  to  deliver  to  the  other 
prairie  hay  'not  to  exceed  two  hun- 
dred tons,*  payment  to  be  made  on 
delivery  of  designated  instalments, 
did  not  confer  upon  the  latter  party 
a  right  to  enforce  delivery  to  the 
limit  mentioned;  was  therefore  with- 
out complete  mutuality,  and  left  it 
optional  with  each  party  to  avoid 
the  agreement  on  giving  notice  to 
the  other  at  any  period  during  the 
time  of  delivery.  Houston,  etc.  Co. 
v.  Mitchell,  38  Tex.  85.     If  the  con- 


16 


241 


§  2G3.] 


LAW    OF    SALE. 


[HOOK   I. 


parties  agreed  that  one  of  them  should  supply  the  other  daring 
a  designated  period  with  certain  stores,  as  the  latter  might 
order.  He  made  an  order  which  was  filled;  then  made  an- 
other, which  was  declined;  and  on  suit  brought  the  defendant 


dition  upon  which  defendant's  prom- 
ise was  to  take  effect  had  been  the 
doing  of  something  involving  labor 
or  other  value  by  Campbell,  and 
upon  the  faith  of  said  promise,  and 
before  its  revocation,  Campbell  had 
done  the  thing,  different  principles 
would  apply,  not  necessary  to  specify 
here.  But  the  foregoing  cases  sutli- 
ciently  show  that  the  mere  exercise 
of  an  option  to  exact  the  perform- 
ance of  a  promise  does  not  alter  the 
situation  of  the  parties,  and  does  not 
prevent  the  promisor  from  exercis- 
ing his  right  of  refusal.  The  author- 
ities quoted  are  sound  and  applica- 
ble to  our  law.  On  these  grounds 
we  hold  that  defendants  were  not 
bound  in  law  to  execute  the  naked 
promise  contained  in  their  agree- 
ment, but  had  the  right  at  any  time 
to  refuse  to  proceed  in  execution 
thereof,  and  for  such  refusal  are  not 
responsible  in  damages  to  plaintiff." 
In  Thayer  v.  Burchard.  99  Mass. 
508,  A  wrote  to  B,  a  common  carrier 
over  one  of  two  routes  from  the  west, 
that  he  was  about  to  buy  grain  in 
the  west  and  wished  to  hear  soon  if 
B  was  disposed  to  contract  for  its 
transportation,  as  he  should  buy  in  a 
different  market  for  B's  route  than 
tor  the  other.  B,  in  reply,  stated  his 
rates  for  carrying  flour  from  the  end 
of  a  canal  to  several  towns.  A  then 
wrote  asking  whether  the  rates  ap- 
plied to  grain  as  well  as  flour,  and 
whether  B  would  abate  a  discrimina- 
tion in  them  against  A's  town.  B 
answered  that  he  would  carry  A's 
flour  and  grain   from  the  canal  to 


that  town  at  a  given  rate  "to  con- 
tinue in  force  till  close  of  navigation 
unless  notice  to  contrary."  A  replied 
the  same  day  accepting  the  proposal. 
Held,  that  to  ascertain  the  terms  of 
the  agreement,  regard  was  to  be  had 
to  the  whole  correspondence,  and  not 
the  two  last  letters  only.  Held,  also, 
that,  by  the  terms  so  ascertained,  the 
relation  of  the  parties  was  in  the  nat- 
ure of  an  open  proposition  by  B,  to 
which  A  might  from  time  to  time 
give  effect  as  a  contract  by  deliver- 
ing flour  and  grain  and  calling  for 
its  transportation,  and  B's  right  to 
end  which  by  notice  was  unqualified. 
Held,  further,  that  after  giving  A  no- 
tice of  a  change  of  rates  to  take  effect 
on  a  certain  day,  B's  obligation  to 
carry  any  of  A's  flour  or  grain  at  the 
former  rates  after  that  day  was  lim- 
ited to  such  flour  and  grain  as  at  the 
time  of  the  notice  had  been  delivered 
to  B  by  A  for  transportation. 

In  Bailey  v.  Austrian,  19  Minn.  535, 
plaintiffs  being  engaged  in  a  general 
foundry  business,  defendant  prom- 
ised to  supply  them  with  all  the  Lake 
Superior  pig  iron  wanted  by  them  in 
their  business  from  September  2d 
until  December  31st  next  ensuing,  at 
specified  prices,  and  plaintiffs  simul- 
taneously promised  to  purchase  of 
defendant  all  of  said  iron,  which  they 
might  want  in  their  said  business 
during  the  time  above  mentioned,  at 
said  prices.  Held,  that  this  state  of 
facts  did  not  establish  a  valid  con- 
tract, since  it  did  not  establish  an  ab- 
solute mutuality  of  engagement,  giv- 
ing each  party  the  right  to  hold  the 


242 


OH.  VI.] 


CONTRACT    OF    SALE  —  IX    GENERAL. 


[§  203. 


rested  his  case  on  the  lack  of  mutuality  in  the  contract,  which, 
he  contended,  rendered  it  void.  Plainly  it  stood,  in  law,  as  a 
mere  continuing  offer  by  the  defendant;  but,  when  the  plaintiff 
made  an  order,  he  thereby  accepted  the  offer  to  the  extent  of 
the  order,  and  it  was  too  late  for  the  other  to  recede.  So  judg- 
ment went  for  the  plaintiff;  Brett,  J.,  observing  that  this  case 
'does  not  decide  the  question  whether  the  defendant  might 

fendant  "to  deliver  to  plaintiff  as 
many  grapes  as  he  should  wish  at  a 
given  price  "  is  a  mere  offer,  which 
the  plaintiff  had  the  right  to  accept 
or  reject,  and  defendant  to  retract 
at  anytime  before  acceptance;  but 


other  to  a  positive  agreement.  See 
also  Tarbox  v.  Gotzian,  20  Minn.  139. 
In  Drake  v.  Vorse,  52  Iowa,  417, 
where  the  defendant  contracted  to 
purchase  from  the  plaintiff,  at  a  cer- 
tain fixed  price,  all  of  the  castings  lie 


should  want  (luring  the  year  in  his    when  the  plaintiff  named  the  quan 


business,  it  was  held  that  the  con- 
tract did  not  preclude  him  from  en- 
tering into  a  partnership  during  the 
year,  and  would  not  become  obliga- 
tory upon  the  firm. 

In  Burton  v.  Great  Northern  Ry. 
Co.,  9  Exch.  507,  where  an  agent 
agreed  to  transport  all  the  goods  that 
might  be  "presented  to  him"  tor  that 
purpose  during  the  year,  but  the  prin- 


tity  which  he  would  take,  the  con- 
1 1  act  became  complete,  and  both  par- 
ties were  bound  by  it. 

In  Chicago,  etc.  Ry.  Co.  v.  Dane,  43 
N.Y.  240,  where  the  defendant  offered 
by  letterto  receive  from  plaintiff  and 
transport  a  quantity  of  iron  not  to 

62 1  a  certain  number  of  tons,  at  a 

specified  rate  per  ton,  and  the  plaint- 
iff answered  merely  assenting  to  the 


cipal  did  not  expressly  agree  to  fur-    proposal,  but  did  not  agree  on  his 


nish  any  goods  for  transportation,  it 
was  held  that  the  agreement  was 
binding  upon  the  agent  only,  and 
that  the  principal  might  at  any  time 
refuse  to  furnish  any  goods,  and  thus 
practically  terminate  the  agency  dur- 
ing the  year  without  liability. 

In  Rhodes  v.  Forwood,  L  R.  1  App. 
I  las.  356, 15  Eng.  R.(Moak),  124,  where 
the  owner  of  coal  mines  appointed 
agents  for  the  sale  of  the  coal  at  Liv- 
erpool for  seven  years,  but  did  not 
agree  to  furnish  them  any  coal  to 
sell  during  that  period,  it  was  held 
that  the  owner  might  sell  his  mines 
and  terminate  the  agency,  even 
though  the  seven  years  had  not  ex- 
pired, without  liability  to  the  agents. 

In  Keller  v.  Ybarru,  3  Cal.  147,  it 
was  held  that  an  undertaking  by  de- 


part to  deliver  any  iron  for  such 
transportation,  it  was  held  that  there 
was  no  valid  contract  binding  on 
eil  her  party. 

In  Bryant  v.  Smith,  87  Mich.  525, 
49  X.  W.  R.  889,  the  plaintiffs  sued 
defendant  for  the  breach  of  an  agree- 
ment which  was  reduced  to  writing 
but  not  signed,  under  which  defend- 
ant agreed  to  sell  and  deliver,  and 
plaintiffs  to  receive  and  pay  for.  five 
car-loads  of  wood  at  a  stated  price 
per  cord.  Defendant  further  agreed 
to  sell  and  deliver  to  plaintiffs  as 
much  more  of  the  same  kind  of 
wood  as  they  should  order  at  the 
same  price.  After  delivering  eight 
car-loads,  further  delivery  was  re- 
fused, and  plaintiffs  were  held  not  to 
be  entitled  to  recover. 


243 


§  2G4.]  LAW  OF  SALE.  [BOOK  I. 

have  absolved  himself  from  the  further  performance  by  giving- 
notice.' " 

§  '261.  .  But  in  a  very  late  case  in  Maryland,1  the  question 

of  the  right  of  the  promisor  to  absolve  himself  from  further 
performance  by  giving  notice  was  decided  in  the  negative.  In 
that  case  defendants  had  agreed  to  sell  and  deliver  to  the 
plaintiffs  during  the  month  of  September  from  three  hundred 
to  five  hundred  tons  of  acid  phosphate.  The  phosphate  was  to 
be  "filled  into  buyers'  bags  and  delivered  to  buyers'  drays  in 
sellers'  factory."  Plaintiffs  were  "  to  give  ample  notice  of  their 
wants  twenty-four  hours  ahead"  and  were  to  pay  cash  on  de- 
livery. Three  hundred  tons  were  delivered  and  paid  for  in 
cash  on  delivery.  The  defendants  then  informed  the  plaintiffs 
that  they  would  decline  to  deliver  any  more.  Plaintiffs  denied 
their  right  so  to  decline,  and  on  the  '2'2d  of  September  notified 
defendants  of  their  desire  to  take  the  remaining  two  hundred 
tons  and  requested  the  delivery  thereof.  Defendants  refused 
to  deliver,  and  suit  was  brought  to  recover  damages  for  the 
breach  of  the  contract.  Said  the  court:  "  The  plaintiffs  had  an 
option  to  make  a  demand  for  the  delivery  of  the  remaining  two 
hundred  tons  of  phosphate  or  any  portion  of  it.  The  plaintiffs 
were  not  bound  to  make  a  demand  for  delivery,  but  if  they  did 
so,  the  defendant  had  agreed  to  deliver  the  article.  It  seems 
to  be  a  settled  principle  that  an  agreement  may  be  so  framed 
as  to  leave  one  party  an  option,  and  thus  impose  no  obligation 
on  the  other  party  until  the  option  is  exercised  so  as  to  create 
an  obligation.2  In  contracts  of  this  nature,  when  one  party 
has  an  option,  and  gives  notice  that  he  has  exercised  it,  the 
effect  of  such  notice  is  to  impose  on  the  other  party  a  binding 
obligation  enforceable  at  law."3  As  to  the  effect  of  the  notice 
of  withdrawal  of  the  offer,  which  was  of  the  essence  of  the  case, 
the  court  dispose  of  it  by  adopting  the  rule  laid  down  by  the 

1  Dambmann  v.  Rittler,  70  Md.  380,        3 "  Such  is  clearly  the  doctrine  as 
14  Am.  St,  R.  364,  17  Atl.  R.  389.  expounded  by  Parke,  J.,  in  Chippen- 

2Citing  2  Parsons  on  Contracts.657;     dale  v.  Thurston,  4  Car.  &  P.  101." 
Wolf  v.  Willetts,  35  111.  88;  Jenkins 
v.  Green,  27  Beav.  437. 

214 


CH.  VI.] 


CONTRACT   OF    BALE 


IX    GENERAL. 


[§    264- 


United  States  supreme  court,1  that  "the  promisee, if  he  pleases, 
may  treat  the  notice  of  intention  as  inoperative,  and  await  the 
time  when  the  contract  is  to  be  executed,  and  then  hold  the  other 
party  responsible  for  all  the  consequences  of  non-performance. 


1  In   Wheeler  v.  New  Brunswick, 
etc.  R.  R.  Co..  115  U.  S.  29. 

Im  Rational  Furnace  Co.  v.  Keystone 
Mfg.  Co.,  110  111.  427.  where  it  was 
that  there  was  no  mutuality, 
the  court  said:  "The  undertaking, 
here,  was  substantially  this:  Appel- 
lant agreed  to  deliver  in  car.  at  Ster- 
ling, Illinois,  all  the  iron  that  appellee 
needed  in  its  business  during  the 
then  ensuing  year,  at  $22.35  per  ton. 
Appellee,  on  its  part,  agreed  to  take 
its  year's  supply  of  iron  of  the  appel- 
lant, and  pay  for  the  same 
ton.  We  do  not  regard  the  contract 
void  on  the  ground  stated.  It  is  true 
that  appellee  was  only  bound  by  the 
contract  to  accept  of  appellant  the 
amount  of  iron  it  needed  for  use  in 
its  business;  but  a  reasonable  con- 
struction must  be  placed  upon  this 
part  of  the  contract,  in  view  of  the 
.situation  of  the  parties.  Appellee 
was  engaged  in  a  large  manufact- 
uring business,  necessarily  using  a 
large  quantity  of  iron  in  the  trans- 
action of  its  business.  It  is  not  to  be 
presumed  that  appellee  would  close 
its  business  and  need  no  iron,  but, 
on  the  contrary,  a  reasonable  pre- 
sumption would  be  that  the  business 
would  be  continued,  and  appellee 
would  necessarily  need  the  quantity 
of  iron  which  it  had  been  in  the 
habit  of  using  during  previous  years. 
It  cannot  be  said  that  appellee  was 
not  bound  by  the  contract.  It  had 
no  right  to  purchase  iron  elsewhere 
for  use  in  its  business.  If  it  had 
done  so,  appellant  might  have  main- 
tained an  action  for  a  breach  of  the 


contract.  It  was  bound  by  the  con- 
tract to  take  of  appellant,  at  the 
price  named,  its  entire  supply  of  iron 
for  the  year, —  that  is,  such  a  quan- 
tity of  iron,  in  view  of  the  situation 
and  business  of  appellee,  as  was  rea- 
sonably required  and  necessary  in  its 
manufacturing  busine>s.  Such  con- 
tracts are  not  unusual.  A  foundry 
may  purchase  its  supply  of  coal  for 
the  season,  of  the  coal  dealer.  A 
hotel  may  do  the  same.  A  city,  for 
the  use  of  the  public  schools,  may 
engage  its  supply  of  coal  for  the 
wint«r,  at  a  specified  price.  Such 
contracts  are  not  uncommon,  and 
we  have  never  understood  that  they 
were  void.  Smith  v.  Morse,  20  La. 
Ann.  220.  is  a  case  in  point.  In  this 
case  Smith  agreed  to  furnish  Morse 
all  the  ice  he  might  require  for  the 
use  of  his  hotel  for  five  years,  at  a 
certain  price.  Smith  undertook  to 
avoid  the  contract,  on  the  ground 
that  Morse  was  not  bound,  but  the 
court  held  the  contract  valid  and 
binding  on  both  parties," 

In  Lee  Silver  Mining  Co.  v.  Omaha, 
etc.  Smelting  Co.,  16  Colo.  118,  26 
Pac.  R.  326,  the  smelting  company 
addressed  a  letter  to  the  mining 
company  saying:  '"For  a  period  of 
sis  months  from  date  we  offer  for 
the  product  of  the  Robert  E.  Lee 
mine  as  follows:  Up  to  To  ounces 
per  ton.  will  pay  92  per  cent,  of  New 
York  quotations;  76  to  150  ounces 
silver  per  ton,  9'di  per  cent,  of  New 
York  quotations:  151  to  250  ounces 
silver  per  ton,  9-4  per  cent,  of  New 
York  quotations;  251  ounces  up,  sil- 


245 


§  264.] 


LAW    OF    SALE. 


[book  I. 


.  .  .  On  the  other  hand,  the  promisee  may,  if  he  thinks 
proper,  treat  the  repudiation  of  the  other  party  as  a  wrongful 
putting  an  end  to  the  contract,  and  may  at  once  bring  his  ac- 
tion on  a  breach  of  it."     This  process  of  reasoning  seems  very 


ver  per  ton,  95  per  cent,  of  New 
York  quotations.  Deducting  seven- 
teen dollars  and  fifty  cents  ($17.50) 
per  ton  for  working  charges.  Price 
of  silver  based  on  New  York  quota- 
tions on  day  of  settlement.  Yours 
truly,  Omaha  and  Grant  S.  &  R.  Co. 
By  Henry  Head.  This  letter  was 
also  signed  by  the  mining  company 
as  evidence  of  its  acceptance.  The 
mining  company  delivered  to  the 
smelting  company  all  its  product  for 
a  n amber  of  months,  when  it  leased 
its  mines  to  a  stranger,  who  refused 
to  deliver  any  more  ore  to  the  smelt- 
ing company.  In  an  action  by  the 
latter  to  recover  damages,  it  was 
urged  that  there  was  no  mutuality 
in  the  contract,  but  the  court  held 
otherwise,  saying:  "An  almost  par- 
allel case  to  the  one  under  consider- 
ation, in  many  respects,  was  Riggins 
v.  Railroad  Co.,  73  Mo.  598,  growing 
out  of  the  following  memorandum: 
'  Kansas  City,  Mo.,  November  6, 1872. 
Lead  from  Baxter  to  St.  Louis  at  22+ 
per  100.  All  lead  shipped  by  Chap- 
man &  Riggins  to  be  forwarded  by 
M.  R.  F.  S.  &  G.  R.  R.  at  above  rates 
from  January  1st,  1873,  to  January 
1st,  1874,  and  above  rates  guaranteed 
for  same  time.  H.  J.  Hayden,  G.  F.  A., 
Riggins  and  Chapman,'  —  the  breach 
alleged  being  that  the  railroad  com- 
pany refused  to  transport  large  quan- 
tities of  lead  offered  by  plaintiff  at 
the  rates  mentioned  in  the  proposi- 
tion. The  same  defenses  were  inter- 
posed that  are  here  insisted  upon  in 
argument,  and  it  was  held  that,  al- 
though Riggins  &  Chapman  did  not 


agree  to  ship  any  definite  quantity 
of  lead,  they  did  bind  themselves  to 
ship  over  the  road  of  the  company 
any  lead  they  should  ship  to  St. 
Louis,  and  that  that  was  a  sufficient 
consideration  for  the  company's 
guaranty  of  rates." 

In  Cherry  v.  Smith,  3  Humph. 
(Tenn.)  19,  39  Am.  Dec.  150,  Smith 
signed  a  paper  stating:  "We  agree 
to  ship  and  forward  to  D.  Cherry 
.  .  .  a  number  of  barrels  of  salt, 
not  to  exceed  one  hundred  and  fifty, 
when  called  on,  at  the  rate  of  fifty 
cents  a  bushel.  .  .  ."  In  an  ac- 
tion by  Cherry  against  Smith  for  a 
refusal  to  deliver  the  salt,  it  was 
urged  that  the  paper  was  not  a  con- 
tract, and  if  it  was  there  was  no  mut- 
uality. But  the  court  said:  "As  to 
the  first  point,  we  think  the  paper 
contains  an  undertaking  on  the  part 
of  the  defendants.  They  say:  'We 
agree  to  ship  and  forward,'  etc., 
thereby  obliging  themselves  to  per- 
form what  they  thus  agree  to  do. 
As  to  the  second  point,  we  think 
there  is  mutuality  in  this  contract. 
The  fact  that  the  agreement  is  op- 
tional as  to  one  of  the  parties,  and 
obligatory  as  to  the  other,  does  not 
destroy  its  mutuality.  If  there  be  a 
sufficient  consideration  on  both  sides 
it  is  mutual.  Disborough  v.  Neilson, 
3  Johns.  Cas.  81 ;  Giles  v.  Bradley,  2 
id.  253;  Penniman  v.  Hartshorn,  13 
Mass.  91.  The  stipulation  here  is,  by 
the  one  party,  that  they  will  deliver 
the  salt  when  called  on,  and  by  the 
other  that  he  will  pay  for  the  salt 
so  delivered  at  fifty  cents  per  bushel. 


2iG 


OH.  VI.] 


CONTRACT   OF    SALE  —  IN    GENERAL. 


[§  204. 


much  like  petitio  prinoipiij  inasmuch  as  it  appears  to  assume 
that  a  contract  as  to  the  two  hundred  tons  existed  between  the 
parties,  when  this  was  the  very  question  at  issue. 

Much  conflict  of  authority  exists,  as  will  be  seen  from  the 
cases  cited  in  the  notes. 


This  constitutes  the  mutuality.  These 
promises,  the  one  in  consideration  of 
the  other,  are  sufficient  to  make  the 
contract  binding.  The  agreement 
on  the  part  of  Cherry  is  to  pay  for 
the  salt  at  the  rate  of  fifty  cents  per 
bushel,  and  he  cannot  claim  the  per- 
formance of  the  engagement  on  the 
part  of  the  defendants,  unless  he  is 
ready  to  fulfill  his  own  as  set  out  in 
the  contract.  It  cannot,  therefore, 
be  regarded  as  a  naked  undertaking 
by  one  party  only;  for  mutual  exec- 
utory undertakings  constitute  a  suf- 
ficient consideration.  Disborough  v. 
Neilson,  3  Johns.  Cas.  81." 

In  Kaufman  Bros.  &  Co.  v.  Farley 
Mfg.  Co.,  78  Iowa.  679,  4:;  X.  W.  R. 
612, 16  Am.  St.  R.  463,  it  was  held  that 
"a  contract  to  furnish  a  vendee  with 
a  certain  line  of  goods  for  sale  in  a 
specified  district,  with  a  provision 
that  the  goods  shall  be  sent  him  as 
he  orders  them,  and  as  long  as  he  has 
sale  for  them,  is  an  agreement  on  the 
part  of  the  vendor  to  furnish  the 
goods  as  ordered  by  the  vendee,  and 
not  only  to  fill  orders  taken  by  him; 
nor  can  the  vendor  terminate  the 
contract  at  pleasure." 

In  Cooper  v.  Lansing  Wheel  Co..  94 
Mich.  272,  54  N.  W.  R.  39,  it  was  held 
that  "  where  carriage  manufacturers 
make  an  order  for  whatever  wheels 
they  may  want  during  a  specified 
season,  at  prices  stated  in  the  order, 
which  is  accepted  by  the  orderee, 
the  order  and  acceptance,  when  sup- 
plemented by  the  filling  of  one  or 
more  orders  for  wheels,  become  a 


valid  and  binding  contract  for  the 
entire  season." 

In  Sheffield  Furnace  Co.  v.  Hull 
Coal  Co.,  101  Ala.  446,  14  S.  R.  672,  it 
was  held  that  "  where  an  agreement 
m  writing  evidences  a  sale  and  pur- 
chase of  a  certain  quantity  of  coke 
at  a  specified  price,  provided  the 
seller  is  able  to  induce  coke  manu- 
facturers to  build  ovens  and  make  a 
certain  portion  of  the  stipulated 
amount  of  coke,  and  provides  for  no- 
tice by  the  seller  at  various  times 
mentioned  as  to  how  much  of  the  en- 
tire quantity  of  coke  can  be  supplied 
during  certain  specified  periods,  and 
recites  that  the  conditions  of  sale, 
binding  the  buyer  to  take  the  coke 
as  specified  and  giving  the  seller  the 
option  to  furnish  it,  are  entered  into 
to  enable  the  seller  to  induce  the 
manufacturers  to  build  sufficient 
ovens  by  promising  a  certain  sale  of 
their  product  at  a  fixed  price,  the 
seller  obligating  himself  to  use  his 
best  endeavor  to  accomplish  this 
end.  though  at  the  time  made  such 
agreement  was  unilateral,  imposing 
no  enforceable  obligation  on  the 
seller,  and  therefore  not  binding  on 
the  buyer,  when  the  seller  induces 
the  manufacturers  to  build  ovens 
sufficient  in  number  to  produce  the 
requisite  quantity  of  coke,  the  uni- 
lateral agreement  is  converted  from 
a  conditional  and  optional  one  into  a 
mutually  binding  contract,  impos- 
ing mutually  enforceable  obligations 
on  the  parties  thereto,  for  the  breach 
of  which  suit  can  be  maintained." 


247 


§  2C5.] 


LAW    OF    SALE. 


[BOOK    I. 


III. 

Of  Mistakes  in  Making  the  Contract. 

§265.  Mistakes  of  parties  in  making  the  contract. —  In 

order  that  there  may  be  a  contract  between  the  parties  it  is 
evident  that  the  parties  must  agree  —  they  must,  as  it  is  so 
often  said,  assent  to  the  same  thing  in  the  same  sense.  In  a 
particular  case,  however,  it  may  be  found  that,  owing  to  the 
mistake,  misapprehension  or  ignorance  of  one  or  both  of  the 
parties,  they  have  not  agreed,  although,  perhaps,  they  thought 
they  had;  and  some  attention  must  now  be  given  to  the  ef- 
fect which  a  mistake  may  have  upon  the  formation  of  the  con- 
tract, although  its  general  effect  upon  the  repudiation  of  the 
contract  will  be  considered  later.1 


In  Minnesota  Lumber  Co.  v.  "White- 
breast  Coal  Co.,  160  111.  85,  43  N.  E.  R. 
774,  31  L.  R.  A.  529,  it  was  held  that 
"a  contract  for  its  '  requirements '  of 
coal  for  a  certain  season,  made  by  a 
lumber  company,  is  not  void  for  un- 
certainty and  for  want  of  mutuality, 
where  it  is  evidently  meant  to  call 
for  the  amount  of  coal  which  the 
corporation  should  need  in  its  busi- 
ness for  such  season,  and  not  merely 
what  it  might  choose  to  require  of 
the  other  party." 

In  Wells  v.  Alexandre.  130  N.  Y. 
642.  29  N.  E.  R.  142,  15  L.  R.  A.  218,  it 
was  held  that  "1.  The  acceptance 
of  an  offer  to  furnish  coal  for  a  year 
at  a  certain  price  to  three  steamers 
named,  which  are  then  employed  on 
a  certain  steamship  line,  makes  a 
definite  and  binding  contract  for  the 
amount  of  coal  required  to  supply 
them  for  one  year  in  their  ordinary 
employment.  2.  If  a  notice  that  coal 
is  needed  is  requisite  to  the  execu- 
tion of  a  contract  to  supply  certain 
steamers  with  coal  for  one  year,  a 
covenant  to  give  such  notice  will  be 
inferred.  3.  The  sale  of  steamers 
after  making  a  contract  for  the  sup- 


ply of  coal  to  them  for  one  year  will 
not  relieve  them  from  the  obligation 
to  take  the  coal  which  their  ordinary 
and  accustomed  use  required." 

In  Walsh  v.  Myers,  92  Wis.  397,  66 
N.  W.  R  250,  the  court  said:  "By  a 
written  contract  defendants  agreed 
to  take  plaintiff's  entire  output  of 
lye  cans,  and  he  was  to  continue  to 
furnish  them  as  theretofore  their 
'entire  wants  for  cans,'  which  were 
to  be  not  less  than  ten  thousand  cans 
per  day.  They  agreed  to  keep  him 
supplied  with  ample  material  so  as 
to  keep  his  force  constantly  em- 
ployed, and  the  contract  was  "  to  con- 
tinue in  force  as  long  as  [the  defend- 
ants] use  lye  cans.'  Held,  that  the 
contract  was  not  void  for  want  of 
mutuality."  See  further,  Michigan 
Stove  Co.  v.  Harris,  81  Fed.  R.  928, 
27  C.  C.  A.  6,  54  U.  S.  App.  137;  Shad- 
bolt,  etc.  Iron  Co.  v.  Topliff,  85  Wis. 
513,  55  N.  W.  R.  854;  Carter  White 
Lead  Co.  v.  Kinlin,  47  Neb.  409,  66  N. 
W.  R.  536;  Staples  v.  O'Neal,  64  Minn. 
27.  65  N.  W.  R.  1083. 

1  See  post,  $$  830-844  (Avoidance  of 
Contract  for  Mistake). 


248 


CH.  VI.]  CONTRACT    OF    SALE IN    GENERAL.  [§  200. 

The  mistakes  which  parties  may  make  are,  of  course,  very 
numerous;  but  they  will,  in  the  main,  fall  under  one  of  the 
following  heads: 

1.  Mistake  as  to  the  nature  of  the  transaction. 

2.  Mistake  as  to  the  parties  to  the  transaction. 

3.  Mistake  as  to  the  subject-matter  of  the  transaction. 

4.  Mistake  as  to  the  terms  of  the  transaction. 

5.  Mistake  as  to  the  possibility  of  performance. 
Each  of  these  will  be  briefly  considered. 

§266.  Mistake  as  to  the  nature  of  the  transaction. —  In 

general,  if  the  parties  are  mistaken  as  to  the  nature  of  the 
transaction,  no  contract  of  sale  is  made.  If  through  ignorance 
or  inadvertence,  while  intending  to  make  a  contract  of  sale 
they  make  a  contract  which  in  legal  effect  is  a  lease,  there 
clearly  is  no  sale  and  the  lease  may  be  avoided.  If  A  says  to 
B,  "I  will  sell  you  this  property  for  $1,000,"  and  B  replies,  "I 
accept  your  offer  to  lease  me  this  property  for  §1,000,"  there  is 
clearly  no  agreement. 

So  if  A,  through  the  fraud  of  B  or  a  third  person,  is  induced 
to  make  a  contract  of  sale  when  he  supposed  he  was  making  a 
contract  of  lease,  he  is  not  bound,1  in  the  absence  of  negligence 
or  of  facts  creating  an  estoppel,  even  to  a  bona  fide  holder.2 

So,  also,  if  A,  intending  to  make  a  contract  of  lease  to  B,  as 
B  knows — that  being  the  effect  of  their  negotiation  —  makes 
what  is  in  legal  effect  a  contract  of  sale,  as  B  knows  but  A 
does  not,  A  is  not  bound.  But  if  A  makes  what  is  in  legal  ef- 
fect a  contract  of  sale  to  B,  when  B,  who  has  acted  in  good 
faith,  expects  a  contract  of  sale  and  supposes  that  A  intends 

i  See  Throughgood's  Case,  2  Co.  R.  9.  Sanger  v.  Dun  (1879),  47  Wis.  615,  3 

2 See  Foster  v.  Mackinnon  (1869).  N.  W.  R.  oSS:  .Maine  Mut.  Ins.  Co.  v. 

L.   R.  4  C.  P.  711.     Of  course,  if  a  Hodgkins  (1876),  66  Me.  109.     And  so, 

party  can  read,  but  does  not,  and  no  though  he  cannot  read,  if  he  does 

artifice  or  fraud  is  practiced  [as  to  not    ask  to    have    it    read   to  him. 

which,  see  Moore  v.  Copp  (1897),  119  Greenfield's  Case  (18.10),  14   Pa.  St. 

CaL  429,  51  Pac.  R.  630],  he  is  bound  489.  496;  Waller's  Appeal  (1883),  103 

by  the  contract  he  signs.     Black  v.  Pa.  St.  o94. 

Wabash  Ry.  Co.  (1884),  111  111  351; 

219 


§  267.] 


LAW    OF    SALE. 


[book  I. 


to  make  a  contract  of  sale  —  that  being  the  apparent  result  of 
their  negotiation, —  A  is  bound  though  he  may  have  intended 
a  contract  of  lease  only. 

§267.  Mistake  as  to  identity  of  party. —  Like  results  may 
also  flow  from  a  mistake  as  to  the  identity  of  one  of  the  parties 
to  the  contract.  As  is  said  in  a  recent  case,1  "  every  one  has  a 
right  to  select  and  determine  with  whom  he  will  contract,  and 
cannot  have  another  person  thrust  upon  him  without  his  con- 
sent. In  the  familiar  phrase  of  Lord  Denman,2  'you  have  the 
right  to  the  benefit  you  anticipate  from  the  character,  credit 
and  substance  of  the  party  with  whom  you  contract.' "  If, 
therefore,  at  the  time  of  making  the  contract,  one  of  the  par- 
ties supposed  the  other  to  be  another  than  he  was,  as  the  latter 
knew  or  had  reason  to  believe,  there  is  a  mistake  as  to  a  ma- 
terial fact  and  hence  no  sale.3  Thus  if  A  orders  goods  of  B,  C, 
though  he  is  B's  successor  in  business,  cannot  fill  the  order 
without  A's   consent,  and  if  be  does  A  is  not  bound.4     But 


1  Mr.  Justice  Gray,  in  Arkansas 
Smelting  Co.  v.  Belclen  Mining  Co., 
127  U.  S.  379,  citing  Humble  v. 
Hunter,  12  Q.  B.  310,  317;  Winchester 
v.  Howard,  97  Mass.  303,  305,  93  Am. 
Dec.  93;  Boston  Ice  Co.  v.  Potter,  123 
Mass.  28,  25  Am.  R.  9;  King  v.  Batter- 
son,  13  R.  I.  117,  120,  43  Am.  R.  13; 
Lansden  v.  McCarthy,  45  Mo.  106. 

2  In  Humble  v.  Hunter,  supra. 

3  Where  the  vendor  in  an  executory 
contract  for  the  future  sale  and  de- 
livery of  ice  is  led  to  believe  by  the 
person  who  negotiates  the  contract 
on  behalf  of  the  vendee  that  he  is 
acting  for  a  particular  firm,  when 
he  really  was  acting  for  a, corpora- 
tion of  the  same  name,  of  the  exist- 
ence of  which  the  vendor  was  igno- 
rant, "  there  was  no  contract,  and  in 
case  ice  had  been  delivered  under  it 
without  knowledge  of  the  facts,  title 
to  the  ice  would  not  have  passed  to 
the  plaintiff."    Consumers'  Ice  Co.  v. 


Webster  (1898),  32  N.  Y.  App.  Div. 
592. 

4  Boulton  v.  Jones,  2  Hurl.  &  Nor. 
564,  furnishes  an  illustration  of  the 
principle.  There  the  defendants,  who 
had  been  in  the  habit  of  dealing  with 
B.,  sent  a  written  order  for  goods  di- 
rected to  B.  The  plaintiff,  who  on 
the  same  day  had  bought  B.'s  busi- 
ness, filled  the  order  without  giving 
the  defendants  any  notice  that  the 
goods  were  not  supplied  to  B.  Upon 
the  plaintiff's  rendering  his  account 
to  defendants  they  disclaimed  all 
transactions  with  him  and  he  brought 
an  action  for  the  price  of  the  goods, 
but  was  held  not  to  be  entitled  to  re- 
cover. Martin,  B.,  said:  "  This  is  not 
a  case  of  principal  and  agent.  If 
there  was  any  contract  at  all,  it  was 
not  with  the  plaintiff.  If  a  man  goes 
to  a  shop  and  makes  a  contract,  in- 
tending it  to  be  with  one  particular 
person,  no  other  person  can  convert 


250 


CII.  VI.] 


CONTRACT    OF    SALE 


IN    GENERAL. 


[§  2<» 


where  A  begins  negotiations  for  a  purchase  with  B,  supposing 

that  he  is  dealing  with  C,  but  before  the  negotiations  are  com- 
pleted is  informed  of  the  mistake  and  completes  the  purchase, 
he  is  bound  and  cannot  afterwards  set  up  the  mistake  to  defeat 


that  into  a  contract  with  him."  To 
like  effect:  Randolph  Iron  Co.  v.  El- 
liott (1869),  34  N.  J.  L.  184. 

Lansden  v.  Mo)  arty,  45  Mo.  10G,  is 
also  to  the  same  effect.  Thei-e  de- 
fendant had  entered  into  a  contract 
with  B.  &  K.  to  supply  their  hotel 
witli  meat  for  a  period  of  one  year 
at  a  certain  rate  per  pound,  payment 
to  be  made  at  the  expiration  of  each 
month  for  the  meat  furnished  during 
that  month.  During  the  year  B.  &  K. 
sold  out  to  plaintiff  and  assigned  to 
him  their  meal  contract  with  defend- 
ant. Plaintiff  notified  defendant  of 
the  assignment  and  demanded  the 
further  performance  of  the  contract 
to  himself,  offering  upon  hi-;  part  to 
perform  all  of  the  covenants  of  his 
assignors.  The  defendant  refused  to 
continue  to  furnish  the  meat  and  the 
plaintiff  brought  an  action  against 
him,  but  was  not  permitted  to  re- 
cover. "The  defendant,'"  said  the 
court,  "  may  have  been  willing  to 
deliver  his  meats  in  advance  of  pay- 
ment by  reason  of  the  confidence  ii<- 
reposed  in  the  credit  and  solvency  of 
the  parties  with  whom  he  originally 
contracted  The  readiness  and  offer 
of  the  plaintiffs  to  pledge  themselves 
to  a  faithful  performance  of  the  stip- 
ulations of  the  contract  obligatory 
upon  their  assignors  is  not  to  the  pur- 
pose. It  does  not  meet  the  exigency 
of  the  case.  The  question  presented 
was  one  of  personal  trust  and  confi- 
dence, which  it  was  the  right  of  the 
defendant  to  decide  for  himself." 

Boston  Ice  Co.  v.  Potter,  123  Mass. 
28,  85  Am.  R.  9,  furnishes  another 


illustration.  Here  the  defendant  had 
made  a  contract  with  the  Citizens' 
Ice  Co.  to  supply  him  with  ice.  With- 
out his  knowledge  the  Citizens'  Ice 
Co.  sold  its  business  to  the  plaintiff, 
with  the  privilege  of  supplying  ice 
to  all  its  customers,  and  the  plaintiff 
furn  isl  ied  ice  tothe  defendant's  house 
for  more  than  a  year  before  he  was 
notified  of  the  change.  Defendant 
had  formerly  purchased  ice  of  the 
plaintiff  company,  but  had  been  dis- 
satisfied with  its  performance  and 
had  terminated  his  contract  with  the 
plaintiff  at  the  time  of  making  the 
contract  with  the  Citizens'  Ice  Co. 
Plaintiff  sued  to  recover  for  the  ice 
so  furnished,  but  it  was  held  that  it 
had  no  cause  of  action.  Endicott,  J., 
said:  "A  party  has  a  right  to  select 
and  determine  with  whom  he  will 
contract  and  cannot  have  another 
person  thrust  upon  him  without  his 
consent.  It  may  be  of  importance 
to  him  who  performs  the  contract, 
as  when  he  contracts  with  another 
to  paint  a  picture,  or  write  a  book, 
or  furnish  articles  of  a  particular 
kind,  or  when  he  relies  upon  the 
character  or  quality  of  an  individual, 
or  has,  as  in  this  case,  reasons  why 
he  does  not  wish  to  deal  with  a  par- 
ticular party.  In  all  these  cases,  as 
he  may  contract  with  whom  he 
pleases,  the  sufficiency  of  his  reasons 
for  so  doing  cannot  be  inquired  into. 
If  the  defendant,  before  receiving 
the  ice,  or  during  its  delivery,  had 
received  notice  of  the  change,  and 
that  the  Citizens'  Ice  Co.  could  no 
longer  rjerform  its  contract  with  him, 


251 


§  268.] 


LAW  OF  SALE. 


[BOOK  I. 


his  liability.'  A  sale  would  not  be  void,  however,  but  voidable 
merely,  where  goods  are  actually  sold  to  A,  though  the  sale  was 
procured  by  his  false  representation  that  he  is  D.2 

§  268.  Undisclosed  principal. —  So  "it  is  true  that  an 

agent  may  sell  the  property  of  his  principal  without  disclosing 
the  fact  that  he  acts  as  an  agent,  or  that  the  property  is  not 
his  own,  and  the  principal  may  maintain  an  action  in  his  own 
name  to  recover  the  price.  If  the  purchaser  says  nothing  on 
the  subject,  he  is  liable  to  the  unknown  principal."3     But  the 


it  would  then  have  been  his  un- 
doubted right  to  have  rescinded  the 
contract  and  to  decline  to  have  it 
executed  by  the  plaintiff.  But  this 
he  was  unable  to  do,  because  the 
plaintiff  failed  to  inform  him  of  that 
which  he  had  a  right  to  know.  If 
he  had  received  notice  and  continued 
to  take  the  ice  as  delivered,  a  con- 
tract would  be  implied." 

Arkansas  Smelting  Co.  v.  Belden 
Mining  Co.,  127  U.  S.  379,  furnishes  a 
late  illustration  of  the  rule.  In  this 
case  defendant  had  contracted  with 
Billing  &  Eilers  to  furnish  to  them 
at  their  smelting  works  ten  thou- 
sand tons  of  lead  ore  in  certain 
amounts  daily,  upon  the  understand- 
ing that  the  ore  should,  upon  deliv- 
ery, become  the  property  of  Billing 
&  Eilers,  and  should  afterwards  be 
paid  for  at  current  New  York  quo- 
tations, in  one  hundred-ton  lots,  ac- 
cording to  an  assay  of  each  lot,  wTith 
a  further  provision  for  arbitration 
in  case  the  parties  could  not  agree 
upon  the  assay.  After  part  of  the 
ore  had  been  delivered,  Billing  & 
Eilers  dissolved  partnership,  and  all 
rights  in  the  business  and  in  the  con- 
tract for  ore  were  transferred  to 
Billing,  and  defendant  continued, 
after  notice  of  the  dissolution,  to 
furnish  ore  to  him  under  the  con- 
tract.    Soon  afterwards,  and  while 


nearly  nine  thousand  tons  remained 
undelivered.  Billing  sold  all  of  his 
interest  in  the  works  and  in  the  ore 
contract  to  the  plaintiff  company, 
of  which  sale  defendant  had  notice. 
Thereupon  defendant  ceased  to  de- 
liver ore  under  the  contract,  and 
gave  plaintiff  notice  that  it  consid- 
ered the  contract  canceled  and  an- 
nulled. Plaintiff,  alleging  its  ability 
and  willingness  to  carry  out  the  con- 
tract on  its  part,  brought  an  action 
for  damages.  The  circuit  court  sus- 
tained a  demurrer  to  the  complaint, 
and  upon  appeal  to  the  United  States 
Supreme  Court  the  judgment  was  af- 
firmed. "  During  the  time  that  must 
elapse  between  the  delivery  of  the 
ore  and  the  ascertainment  and  pay- 
ment of  the  price,"  said  Mr.  Justice 
Gray,  "the  defendant  has  no  secu- 
rity for  its  payment  except  in  the 
character  and  solvency  of  Billing  & 
Eilers.  The  defendant,  therefore, 
could  not  be  compelled  to  accept  the 
liability  of  any  other  person  or  cor- 
poration as  a  substitute  for  the  lia- 
bility of  those  with  whom  it  had 
contracted." 

1  Mudge  v.  Oliver,  1  Allen  (Mass.). 
74 

2  Edmunds     v.    Merchants'    Desp. 
Transp.  Co.,  135  Mass.  283. 

3  Huntington    v.    Knox,    7    Gush. 
(Mass.)  371;  Winchester  v.  Howard, 


232 


CH.  VI.] 


CONTRACT    OF    SALE  —  IN    GENERAL. 


[§  209. 


other  party  ma}7  expressly  exclude  negotiations  with  the  prin- 
cipal and  confine  them  to  the  agent  personally,  and  where  he 
does  so  the  principal  cannot  intervene.1  So,  on  the  other  hand, 
where  one  is  really  buying  goods  for  himself,  the  seller  cannot 
hold  a  third  person  responsible  who  subsequently  buys  the 
goods  from  the  first  purchaser  because  he  supposed  that  the 
latter  was  only  the  agent  of  such  third  person.2 


s  -:w. 


Assumed  agent. —  "Where  an  assumed  agent  has 


no  authority  to  bind  and  does  not  bind  his  alleged  principal, 
there  is,  of  course,  no  sale.3  Neither  is  there  any  sale  where 
one,  by  falsely  representing  himself  to  be  the  agent  of  a  named 
or  an  unnamed  principal,  procures  goods  on  the  credit  of  such 
principal ; '  and  the  vendor  may  maintain  replevin  for  his  goods 
or  recover  their  value  in  trover  even  from  the  honajide  pledgee5 


97  Mass.  303,  93  Am.  Dec.  93.  This 
would,  of  coarse,  be  subject  to  de- 
fenses against  the  agent.  See 
Mecbem  <>n  Agency,  §  773;  Baxter 
v.  Sherman  (1898),  73  Mum.  434,  76 
N.  W.  K.  311,  72  Am.  St.  R.  681;  Bel- 
field  v.  National  Supply  Co.  (1899), 
189  Pa  St.  189,  42  Atl.  R.  131,  69  Am. 
St.  H.  799. 

1  Winchester  v.  Howard,  supra. 

-Stoddard  v.Ham,  139  Mass.  383, 
37  Am.  R.  369,  distinguishing  Boston 
Ice  Co.  v.  Potter,  123  Mass.  28.  23 
Am.  K.  9;  Ilardman  v.  Booth,  1  H. 
&  C.  803:  and  Mitchell  v.  La  Page, 
Holts  N.  P.  253. 

3  J.  S.,  who  pretended  to  represent 
B.  &  Co.,  called  upon  D.  and  con- 
tracted with  him  for  wool  to  be  con- 
signed to  B.  &  Co.  at  Pittsburgh,  to 
be  paid  for  when  D.  should  call.  J.  S. 
also  called  upon  B.  &  Co.,  pretended 
to  be  the  son  of  D.,  and  contracted 
to  sell  them  wool.  The  wool  was 
shipped  by  D..  consigned  to  B.  &  Co., 
but  was  recei%Ted  by  J.  S.,  who  de- 
livered it  to  B.  &  Co.  and  received 
the  pay  for  it.     In  an  action  of  re- 


plevin by  D.  against  B.  &  Co.  it  was 
held  that  D.'s  titlt.>  was  not  divested 
and  that  he  could  recover.  Barker 
v.  Dinsmore  (1872),  72  Pa.  St.  427.  13 
Am.  R.  (597.  Compare  with  McGold- 
rick  v.  Willits  (1873),  52  X.  Y.  612. 

4  If  A.,  representing  himself  to  be 
a  brother  of  a  reputable  merchant, 
buying  for  him,  buys,  in  person, 
goods  of  another,  the  property  in  the 
goods  does  not  pass  to  A.,  and  the 
seller  may  recover  them  from  a  car- 
rier to  whom  A.  has  delivered  them 
for  carriage.  Aborn  v.  Merchants' 
Despatch  Transportation  Co.,  135 
Mass.  283. 

5  The  plaintiff  refusing  to  sell  goods 
to  C,  a  broker,  delivered  them  to  him 
on  his  representation  that  they  were 
for  an  undisclosed  principal  in  good 
credit,  and  entered  and  billed  them 
as  on  a  sale  to  C.  It  turning  out  that 
there  was  no  such  principal,  held, 
that  the  plaintiff  might  maintain  re- 
plevin for  the  goods  from  the  de- 
fendant,  who  was  C.'s  bona  fide 
pledgee.  Rodliff  v.  Dallinger,  141 
Ma—.  1,  55  Am.  R.  439.     "It  was  ad- 


253 


§§  270,  271.] 


LAW    OF    SALE. 


[boos  I. 


or  vendee l  of  the  assumed  agent,  there  being  not  even  a  de  facto 
contract  between  the  latter  and  the  true  owner. 

§  270.  Mistake  regarding  the  tiling  sold. —  Failure  to  con- 
tract may  also  result  from  mistake  regarding  the  thing  Bold. 

This  mistake  may  be  that  of  both  parties  or  of  one  only;  and 
it  may  be  respecting  its  existence,  location  or  character.  Some- 
what different  results  may  follow  in  these  several  c;ises. 


§  271.  Existence  of  thing  sold.— If,  contrary  to  the 

belief  of  both  parties,  the  thing  contracted  for  never  had  any 
existence,  or  it  had  ceased  to  exist,  as  if  the  horse  supposed  to 
be  alive  in  the  vendor's  stable  had  suddenly  died  before  the 


mitted,"  said  the  court,  "that  Clem- 
entson  (C.)  in  fact  was  not  acting  for 
such  an  undisclosed  principal;  and 
it  follows  that  if  the  plaintiff's  evi- 
dence was  believed  there  was  no  sale. 
There  could  not  be  one  to  this  sup- 
posed principal,  because  there  was 
no  such  person,  and  there  was  not 
one  to  Clementson.  because  none  pur- 
ported to  be  made  to  him,  but,  on 
the  contrary,  such  a  sale  was  ex- 
pressly refused  and  excluded."  Cit- 
ing Edmunds  v.  Merchants'  Despatch 
Transportation  Co.,  135  Mass.  283. 

1 H.,  relying  on  the  representations 
of  R.  that  he  was  the  agent  of  L.  & 
Co.,  agreed  to  sell  goods  to  L.  &  Co. 
on  credit,  delivered  them  to  L.  &  Co. 
and  received  part  of  the  price  from 
R.  R.  was  not  the  agent  of  L.  &  Co., 
and  had  no  authority  to  purchase  for 
L.  &  Co.,  and  the  latter  bought  the 
goods  from  R.,  without  any  knowl- 
edge of  the  fraud  R.  was  practicing 
on  H.  Held,  that  the  title  did  not 
pass  and  that  H.  could  recover  their 
value  from  L.  &  Co.  less  the  amount 
paid  by  R.  Ha  met  v.  Letcher,  37 
Ohio  St.  336,  41  Am.  R  519.   Said  the 


court:  "This,  therefore,  was  not  a 
contract  voidable  merely,  but  an 
agreement  wholly  void;  and  under 
the  circumstances  the  pi-operty  in 
the  hogs  never  passed  from  Hamet. 
Hence,  applying  the  maxim  that  no 
one  can  transfer  a  greater  right  or 
better  title  than  he  himself  possesses 
(Roland  v.  Gundy,  5  Ohio,  202),  it 
necessarily  follows  that  Letcher  & 
Co.  are  liable  as  for  a  conversion." 
Citing  Moody  v.  Blake,  117  Mass.  23; 
Barker  v.  Dinsmore,  72  Pa.  St.  427,  13 
Am.  R.  697;  Saltus  v.  Everett,  20 
Wend.  (N.  Y.)  267,  32  Am.  Dec.  541; 
Fawcett  v.  Osborn,  32  111.  411;  Hard- 
man  v.  Booth,  1  H.  &  C.  803;  Higgons 
v.  Burton.  26  L.  J.  Ex.  342;  Kings- 
ford  v.  Merry.  1  H.  &  N.  503:  Hollins 
v.  Fowler,  L.  R.  7  Q.  B.  616;  affirmed, 
L.  R.  7  H.  L.  757;  In  re  Reed,  3  Ch. 
Div.  123;  Lickbarrow  v.  Mason,  1 
Smith  L.  C.  388;  Cundy  v.  Lindsay, 
L.  R.  3  App.  Cas.  459.  Stoddard  v. 
Ham,  129  Mass.  383,  37  Am.  R.  369; 
Dean  v.  Yates,  22  Ohio  St.  388,  and 
Sanders  v.  Keber,  28  Ohio  St,  630, 
were  also  cited  and  reconciled. 


254 


OH.  VI.] 


CONTRACT    OF    SALE  —  IN    GENERAL. 


[§  2<2- 


negotiations  were  completed,  there  would  clearly  be  no  sale,1 
as  both  parties  contemplate  the  sale  of  a  living  and  not  a  dead 
horse.  The  same  result  would  doubtless  ensue  if  one  of  the 
parties  had  secret  knowledge  of  the  death  which  he  concealed 
from  the  other. 

§272.  Identity  of  tiling  sold.—  Xo  contract  of  sale 

obviously  can  result  if  the  parties  are  not  agreed  as  to  the  iden- 
tity of  the  thing  sold.  If  A  says  to  13:  "1  will  sell  you  my 
black  horse  for  one  hundred  dollars;"  and  B  replies:  "I  ac- 
cept your  offer  to  sell  me  your  white  horse  for  one  hundred 
dollars,"  there  is  clearly  no  agreement;  and  though  the  nego- 
tiations may  not  take  this  simple  and  specific  form,  if  A  sup- 
3  he  is  selling  one  thing  while  B  supposes  he  is  buying 
another,  no  sale  results.2 


iSee  Thomas  v.  Knowles  (1879),  128 
Mass.  22. 

SKyle    v.    Kavanagh    (1809),    103 

Mass.  356,  -1  Am.   K.  560;   Stong  v. 

L896),  66  Minn.  94,  68  X.  W.  R. 

Where  a  certain  number  of  barrels 
of  No.  1  mackerel  are  sold,  and  by 
mistake  some  barrels  of  No.  '■'>  mack- 
erel and  some  barrels  of  salt  are  de- 
liv.nd.no  title  to  the  articles  thus 
delivered  by  mistake  passes  to  the 
purchaser.  Gardner  v.  Lane,  9  Allen. 
492,  85  Am.  Dec.  779.  The  delivery 
of  a  ten-dollar  gold  piece  by  mistake 
instead  of  a  fifty-cent  piece  conveys 
no  title  to  the  gold  piece.  Chapman 
v.  Cole,  12  Gray  (Mass.),  111.  71  Am. 
Dec.  739. 

Damaged  flour  was  offered  for  sale 
at  auction,  divided  into  two  classes. 
One  class,  slightly  damaged,  was  of- 
fered by  the  barrel,  in  the  barrels  in 
which  it  was  originally  packed.  The 
other,  much  damaged,  had  bni  re- 
packed, and  was  offered  by  the  pound 
as  repacked  flour  or  "  dough."  The 
sale  took  place  in  an  auction  room; 


the  flour  was  in  the  street  outside. 
After  the  auctioneer  had  sold,  as  he 
thought,  all  of  the  fust  class,  he  of- 
fered i->r  sale  tin-  Becond  class,  stat- 
ing the  difference  between  the  two 
cla-ses.    The  plaintiff ,  who  was  the 
highest  bidder,  selected  bytheirnum- 
bers  two  rows  of  barrels  as  the  flour 
he  would  take.      These    rows   were 
made  up  of  barrels  of  flour  of  the  first 
.lass,  accidentally  mi-place. I   with- 
out the  knowledge  of  the  owner  or 
auctioneer.    Held,  there  had  been  no 
sale,  as  the  minds  of  th     parties  had 
not  met  as  to  the  subject-matter  of 
the  sale.    Harvey  v.  Harris,  112  Mass. 
32.   The  purchaser  at  an  auction  sale 
by  catalogue,  wherein  the  parcels  are 
numbered,  is  entitled  upon  his  bid 
only  to  the  parcel  put  up  by  the 
auctioneer  by  its  number,   though 
through  mistake  a  parcel  of  another 
number  is  exhibited  to  the  bidders. 
Where  the  auctioneer  put  up  for  sale 
parcel  No.  24  and  ( '.  bid  thereon,  sup- 
posing No.  25  to  be  offered,  and  the 
parcel  was  struck  off  to  him,  held, 
that  neither  parcel  was  sold,  but  the 
255 


§§  273,  274.] 


LAW    OF    SALE. 


[book  I. 


273. 


Unknown   article  contained  or  concealed   in 


thing  sold. —  Allied  to  the  cases  considered  in  the  preceding 
section  are  those  in  which  the  thing  sold  contains  or  has  at- 
tached to  or  concealed  in  it  some  article  of  whose  presence 
the  vendor  was  ignorant.  Thus  the  sale  of  a  coat  passes  no 
title  to  a  pocket-book  which  may  happen  to  be  temporarily 
deposited  therein;  the  sale  of  a  safe  or  a  chest  of  drawers 
passes  no  title  to  the  deposits  contained  therein;  and  the  sale 
of  a  machine  conveys  no  title  to  money  and  valuables  which 
the  former  owner  had  concealed  within  it.1 

§  274.  Mistake  as  to  quantity. —  Mistakes  as  to  quan- 
tity may  readily  occur.  If  the  quantity  is  open  to  inspection, 
one  party  could  not  ordinarily  escape,  in  the  absence  of  artifice, 


title  to  each  remained  unchanged. 
Sheldon  v.  Capron,  3  R.  I.  171. 

A  sale  was  of  ten  tons  of  sound 
merchantable  hemp,  but  it  was  in- 
tended by  the  vendor  to  sell  St.  Pe- 
tersburg hemp,  and  by  the  buyer  to 
purchase  Riga  Rhine  hemp,  a  supe- 
rior article.  The  broker  had  made  a 
mistake  in  describing  the  hemp  to 
the  buyer,  and  the  court  held  that 
there  had  been  no  contract  whatever, 
the  assent  of  the  parties  not  having 
really  existed  as  to  the  same  subject- 
matter  of  sale.  Thornton  v.  Kemp- 
ster,  5  Taunt.  786. 

A  contract  was  made  for  the  sale 
of  "one  hundred  and  twenty-five 
bales  of  Surat  cotton,  guaranteed 
middling  fair  merchants'  Dhollerah, 
to  arrive  ex  Peerless  from  Bombay," 
and  the  defendant  pleaded  to  an  ac- 
tion against  him  for  not  accepting 
the  goods  on  arrival,  that  the  cotton 
which  he  intended  to  buy  was  cotton 
on  another  ship  Peerless,  which  sailed 
from  Bombay  in  October,  not  that 
which  arrived  in  a  ship  Peerless  that 
sailed  in  December,  the  latter  being 
the  cotton  that  plaintiff  had  offered 


to  deliver.  On  demurrer,  held,  that 
on  this  state  of  facts  there  was  no 
consensus  ad  idem,  no  contract  at 
all  between  the  parties.  Raffles  v. 
Wichelhaus,  2  H.  &  C.  900. 

1  Huthmacher  v.  Harris,  38  Pa. 
St,  491,  80  Am.  Dec.  502;  Durfee  v. 
Jones,  11  R.  I.  588,  23  Am.  R  528; 
Merry  v.  Green,  7  Mees.  &  W.  623; 
Bowen  v.  Sullivan,  62  Ind.  281,  30  Am. 
R  172;  Ray  v.  Light,  34  Ark.  421. 

The  owner  of  a  tannery  sold  it, 
and  accidentally  omitted  to  remove 
a  few  hides  from  the  vats.  More 
than  twenty  years  afterwards  a 
laborer,  working  for  a  subsequent 
grantee,  found  them.  Held,  that  he 
got  no  title  to  them,  as  they  were 
neither  lost,  abandoned,  derelict  nor 
treasure  trove,  but  belonged  to  the 
original  owner  or  his  representatives. 
Livermore  v.  White,  74  Me.  452,  43 
Am.  R.  600. 

A  bought  an  old  safe,  and  after- 
wards offered  to  sell  it  to  B,  who  de- 
clined to  purchase.  It  was  then  left 
with  B  to  sell,  with  the  privilege  of 
using  it  until  sold.  B  found  secreted 
in  it  a  roll  of  bills  belonging  to  some 


256 


OH.  VI.] 


CONTRACT    OF    SALE IN    GENEEAL. 


[§   274. 


contrivance  or  unequal  footing,  because  the  quantity  was  dif- 
ferent from  what  he  supposed  it  to  be.  But  if  both  parties 
were  alike  mistaken,1  or  if  the  quantity  was  not  open  to  in- 
spection and  one  party  is  in  error  as  to  the  quantity  proposed, 
there  is  no  meeting  of  the  minds.2 


person  unknown,  whereupon  A  de- 
manded  the  money  and  also  the  safe 
and  its  cimtents  as  when  B  received 
it.  B  returned  the  safe  but  kept  the 
money.  Held,  as  between  A  and  B, 
that  B  was  entitled  to  retain  the 
money  as  finder,  it  being  conceded 
thai  A  by  his  purchase  of  the  safe 
acquired  no  title  to  the  money.  Dur- 
fee  v.  Jones,  11  R.  I.  588,  23  Am.  R. 
538 

A  girl  assorting  paper  rags  in  a 
paper  mill  found  a  Dumber  of  bank 
hills  in  a  clean,  unmarked  envelope, 
among  the  ra^s.  Ibid,  tint  as 
against  the  proprietor  of  the  mills 
she  was  entitled  to  them,  as  under, 
the  purchase  of  the  rags  not  carry- 
ing with  it  the  title  to  the  hills. 
U. .w.n  v.  Sullivan.  02  Ind.  281,  30 
Am.  R.  172. 

i  In  Wheadon  v.  Ohls  1 1 B 
Wend.  (N.  Y.)  174,  the  contract  was 
for  the  sale  of  a  quantity  of  oats  sup- 
posed to  contain  from  one  thousand 
six  hundred  to  two  thousand  bushels. 
The  oats  were  to  be  delivered  from 
a  storehouse  into  a  canal  boat;  as  the 
delivery  proceeded  tallies  were  kept, 
an  1  after  the  tallies  amounted  to  five 
hundred,  it  was  proposed  to  guess  at 
the  whole  quantity  by  comparing 
the  amount  gone  into  the  boat  with 
that  yet  remaining,  and  it  was  finally 
agreed  that  there  were  one  thousand 
nine  hundred  bushels,  for  which 
amount  the  buyer  paid.  Afterwards 
when  the  oats  were  measured  out 
there  were  found  to  be  but  one 
thousand  four  hundred  and  eighty- 


eight  bushels,  and  then  it  was  dis- 
covered that  both  parties  were  in 
error  as  to  the  tallies:  they  were  of 
half  bushels,  instead  of  bushels,  as 
the  parties  supposed.  It  appeared 
also  that  the  buyer  had  said,  while 
they  were  agreeing  upon  the  quan- 
tity, that  lie  would  take  the  oats  at 
one  thousand  nine  hundred  bushels, 
"  hit  or  miss:  "  hut  it  was  held  that 
there  was  such  mistake  that  the 
buyer  could  recover  for  the  differ- 
ence het  ween  the  actual  and  the  es- 
timated quantity.  So,  where  the 
parties  were  negotiating  for  the  sale 
of  a  ton  of  hay.  and.  to  avoid  the 
trouble  of  weighing  it.  measured  at 
a  rate  which  they  mistakenly  esti- 
mated would  constitute  a  ton,  but 
which  really  made  but  little  more 
than  half  a  ton.  it  was  held  that 
there  was  such  mistake  as  to  justify 
a  recovery  of  the  excess  in  prices 
paid.  Scott  v.  Warner  1 1870),  '3  Lans. 
i  X.  Y.  i  I'.i.  And  to  the  same  effect  is 
Cox  v.  Prentice  (1815),  3  Maule  & 
Sel.  344,  where  the  parties  sold  a  bar 
of  silver  and  paid  for  it  on  the  basis 
of  the  aasayer's  estimate,  which  was 
proved  to  be  incorrect. 

2  In  Hartford  &  N.  H.  R.  Co.  v. 
Jackson  (1856),  24  Conn.  514,  63  Am. 
Dec.  177.  it  appeared  that  defend- 
ants applied  to  the  agent  of  the  car- 
rier for  a  rate  for  transportation  of 
a  quantity  of  laths.  The  agent  asked 
how  many  there  would  be.  Defend- 
ants turned  to  a  companion,  who 
said  he  thought  there  would  be  five 
hundred  bundles.   The  agent  claimed 


17 


257 


§  275.] 


LAW  OF  SALE. 


[BOOK  I. 


On  the  other  hand,  where  one  submits  a  plain  and  unam- 
biguous order  for  goods  to  a  manufacturer  which  is  accepted, 
the  person  ordering  cannot  be  relieved  because  he  ordered 
more  goods  than  he  thought  he  was  ordering.1 


275. 


Mistake  as  to  kind,  quality  or  character. — 


Mistakes  as  to  kind,  qualitcy  or  character  are  not  so  easily  dis- 
posed of.  A  mistake  as  to  kind  may  be  so  great  as  really  to 
amount  to  a  mistake  as  to  identity;  and,  if  it  is  the  mistake  of 
both  parties,  will  prevent  agreement,  and  if  the  mistake  of  one, 
going  to  the  substance  of  the  contract,  will  justify  him  in  re- 
fusing to  execute  the  attempted  agreement,  or  in  repudiating 
it  if*executed. 


that  he  understood  him  to  say  one 
hundred  bundles,  and  made  a  rate 
for  that  quantity.  When  the  laths 
were  delivered  to  the  carrier  the 
agent  discovered  the  mistake,  and 
tried  to  communicate  with  the  de- 
fendants, but  did  not  succeed  in  find- 
ing them.  He  therefore  forwarded 
the  whole  quantity,  and  the  action 
was  to  recover  the  usual  rate  of  sur- 
plus. Held,  that  if  the  parties  did  not 
assent  to  the  same  thing  in  the  same 
sense,  there  was  no  contract,  and 
that  whether  they  did  so  assent  was 
a  question  of  fact  for  the  jury. 

>  In  Coates  v.  Early  (1895),  46  S.  C. 
220,  24  S.  E.  R.  305,  it  appeared  that 
Coates  &  Sons  had  solicited  from 
Early  an  order  for  "needle-cards." 
They  sent  him  a  sample  card  and  a 
printed  blank  for  the  order.  Each 
needle-card  contained  thirty-two 
nepdles.  Early  filled  out  an  order  on 
the  blank  for  five  thousand  needle- 
cards  as  described,  with  his  adver- 
tisement printed  on  each  card.  The 
needle-cards  were  duly  supplied, 
printed  as  directed,  but  Early  re- 
fused to  receive  them  because,  as  he 
contended,  he  thought  he  was  order- 


ing five  thousand  needles,  and  not 
five  thousand  cards  of  thirty-two 
needles  each.  But  the  court  held 
that  as  the  order  was  clear  and  un- 
ambiguous, and  as  the  plaintiffs 
were  in  no  way  responsible  for  the 
mistake  or  conscious  of  it,  Early  was 
bound. 

Avoidance  of  contract  for  mis- 
take.—In  Sherwood  v.  Walker,  66 
Mich.  568, 11  Am.  St.  R.  531,  Morse,  J., 
says:  "It  must  be  considered  as  well 
settled  that  a  party  who  has  given  an 
apparent  consent  to  a  contract  of  sale 
may  refuse  to  execute  it,  or  he  may 
avoid  it  after  it  has  been  completed, 
if  the  assent  was  founded,  or  the  con- 
tract made,  upon  the  mistake  of  a 
material  fact,  such  as  the  subject- 
matter  of  the  sale,  the  price,  or  some 
collateral  fact  materially  inducing 
the  agreement;  and  this  can  be  done 
when  the  mistake  is  mutual."  Citing 
Benjamin  on  Sale,  sees.  605,  606: 
Leake  on  Contracts,  339;  Story  on 
Sales  (4th  ed.),  sees.  148,  377;  Cutts  v. 
Guild,  57  N.  Y.  229;  Harvey  v.  Harris, 
112  Mass.  32;  Gardner  v.  Lane,  9 
Allen  (Mass.),  492,  85  Am.  Dec.  779, 
12  Allen,  44;  Huthmacher  v.  Harris, 


258 


CII.  VI.]  CONTRACT    OF    SALB IN    GENERAL.  [§  276. 

But,  in  order  that  the  mistake  of  one  party  shall  have  this 
effect,  it  must  be  a  mistake  as  to  a  fact  which  is  of  the  very 
essence  of  the  contract,  and  not  as  to  some  collateral  thing 
which  does  not  affect  the  substance  of  the  whole  consideration. 
As  is  said  in  a  late  case,1  "  the  mistake  must  be  one  which  af- 
fects the  existence  or  identity  of  the  thing  sold.  Any  mistake 
as  to  value  or  quality,  or  other  collateral  attributes,  is  not  suf- 
ficient if  the  thing  delivered  is  existent,  and  is  the  identical 
thins  in  kind  which  was  sold."  In  another  case2  the  rule  is 
stated  thus:  "If  there  is  a  difference  or  misapprehension  as  to 
the  substance  of  the  thing  bargained  for,  if  the  thing  actually 
delivered  or  received  is  different  in  substance  from  the  thing 
bargained  for  and  intended  to  be  sold,  then  there  is  no  con- 
tract;  but  if  it  be  only  a  difference  in  some  quality  or  accident, 
even  though  the  mistake  may  have  been  the  actuating  motive 
to  the  purchaser  or  seller,  or  both  of  them,  yet  the  contract 
remains  binding."  "  The  difficulty  in  every  case  is  to  deter- 
mine whether  the  mistake  or  misapprehension  is  as  to  the  sub- 
stance of  the  matter,  or  only  to  some  point,  even  though  a 
material  point,  an  error  as  to  which  does  not  affect  the  sub- 
stance of  the  whole  consideration."3 

§  276.  .  On  the  ground  that  there  was  such  an  essential 

mistake  in  regard  to  the  kind  of  article  dealt  with,  it  was  held 
that,  where  both  parties  believed  a  cow  contracted  for  was  not 
a  breeder,  and  was  therefore  valuable  only  for  beef,  when  in 
fact  she  was  a  breeder  and  really  worth  ten  to  twelve  times 
the  price  agreed  upon,  the  seller  might  repudiate  the  contract 
and  refuse  to  surrender  the  cow.4     So  it  is  a  material  mistake 

* 

38  Pa.  St.  491,  80  Am.  Dec-,  502;  Byers  2  Sherwood  v.  Walker,  6G  Mich.  568, 

v.  Chapin.  28  Ohio  St.  300;  Gibson  v.  11  Am.  St.  R.  531. 

Pelkie,  37  Mich.  380;  Allen  v.  Ham-  3  Kennedy   v.    Panama,  etc.  Mail 

mond,  11  Pet.  (U.  S.)  63.  Co.,  L.  R.  2  Q.  B.  580,  588. 

1  Hecht  v.  Batcheller,  147  Mass.  335,  *  Sherwood    v.   Walker    (1887),   66 

9  Am.  St.  R.  708,  citing  Gardner  v.  Mich.  568,  33  N.  W.  R.  919,  11  Am. 

Lane,  siqwa;  Spurr  v.  Benedict,  99  St.  R.  531.     "It  seems  to  me."  said 

Mass.  463;   Bridgewater  Iron  Co.  v.  Morse,  J.,  writing  for  the  majority 

Enterprise  Ins.  Co.,  134  Mass.  433.  of  the  court,  "that  the  mistake  or 

259 


§  276.] 


LAW    OF    SALE. 


[book  I. 


where  the  parties  deal  upon  the  understanding  that  the  seller 
has  the  title  to  the  goods  and  may  lawfully  convey  it,  whereas- 
in  fact  he  had  no  title.1 

Upon  the  other  hand,  it  was  held  that  there  was  no  such 
mistake  as  would  defeat  the  contract  where,  without  any  fraud 
or  unfairness,  a  woman  sold  to  a  jeweler  for  $1  a  stone  which 
both  supposed  to  be  a  topaz  or  some  other  curious  speci- 
men, but  which  proved  to  be  a  diamond  worth  $1,000.2    Nor 


misapprehension  of  the  parties  went 
to  the  whole  substance  of  the  agree- 
ment. If  the  cow  was  a  breeder  she 
was  worth  at  least  $750;  if  barren, 
she  was  worth  not  over  $80.  The 
parties  would  not  have  made  the 
contract  of  sale  except  upon  the  un- 
derstanding and  belief  that  she  was 
incapable  of  breeding,  and  of  no  use 
as  a  cow.  It  is  true  she  is  now  the 
identical  animal  that  they  thought 
her  to  be  when  the  contract  was 
made;  there  is  no  mistake  as  to  the 
identity  of  the  creature.  Yet  the 
mistake  was  not  of  the  mere  quality 
of  the  animal,  but  went  to  the  very 
nature  of  the  thing.  A  barren  cow 
is  substantially  a  different  creature 
than  a  breeding  one.  There  is  as 
much  difference  between  them  for 
all  purposes  of  use  as  there  is  be- 
tween an  ox  and  a  cow  that  is  ca- 
pable of  breeding  and  giving  milk. 
If  the  mutual  mistake  had  simply 
related  to  the  fact  whether  she  was 
with  calf  or  not  for  one  season,  then 
it  ought  have  been  a  good  sale;  but 
the  mistake  affected  the  character 
of  the  animal  for  all  time,  and  for 
her  present  and  ultimate  use.  She 
was  not  in  fact  the  animal,  or  the 
kind  of  animal,  the  defendants  in- 
tended to  sell  or  the  plaintiff  to  buy. 
She  was  not  a  barren  cow,  and,  if 
this  fact  had  been  known,  there 
would  have  been  no  contract.    The 


mistake  affected  the  substance  of  the 
whole  consideration,  and  it  must  be 
considered  that  there  was  no  con- 
tract to  sell  or  sale  of  the  cow  as  she 
actually  was.  The  thing  sold  and 
bought  had  in  fact  no  existence.  She 
was  sold  as  a  beef  creature  would  be 
sold;  she  is  in  fact  a  breeding  cow 
and  a  valuable  one." 

In  Newell  v.  Smith  (1885),  53  Conn. 
72,  plaintiff  had  sold  defendant  a  cow 
for  which  he  was  to  pay  $100  if  she 
was  with  calf,  and  $40  if  she  was  not. 
Six  months  later,  both  parties  con- 
cluded that  she  was  not  with  calf, 
and  settled  on  that  basis.  She  proved 
to  be  with  calf,  and  it  was  held  that 
plaintiff  could  recover  the  remain- 
ing $60. 

1  Varnum  v.  Highgate  (1892),  65  Vt. 
416,  26  Atl.  R.  628. 

2  Wood  v.  Boynton  (1885),  64  Wis. 
265,  25  N.  W.  R.  42,  54  Am.  R.  610. 

So  a  contract  for  the  sale  of  a  horse 
known  by  both  parties  to  be  sick,  but 
no  warranty  being  given,  cannot  be 
afterwards  repudiated  because  the 
purchasers  discover  that  the  horse  is 
sicker  than  they  thought  it  was. 
"  Such  an  error  or  mistake  as  that  in 
no  manner  affects  the  validity  of  the 
contract.  In  a  case  where  there  is  a 
mutual  mistake  of  the  parties  as  to 
the  subject-matter  of  the  contract, 
or  the  price  or  terms,  going  to  show 
the  want  of  a  consensus  ad  idem. 


260 


CH.  VI.] 


CONTRACT  OF  SALE IX  GENERAL. 


[§  277. 


is  there  where  a  promissory  note  was  sold,  both  parties  suppos- 
ing the  makers  to  be  doing  business  as  usual,  though  in  fact  the 
makers,  two  hours  before  the  sale,  had  made  a  general  assign- 
ment of  all  their  property  for  the  benefit  of  creditors.1 

§  277.  Mistake  as  to  location. —  A  mistake  as  to  the 

location  of  the  property  may  be  so  material,  within  the  mean- 


without  which  no  contract  can  arise, 
such  a  defense  may  be  made.  But 
here  the  mistake  of  the  defendants 
was  in  relation  to  a  fact  wholly  col- 
lateral, and  not  affecting  the  essence 
of  the  contract  itself.  The  vendees 
cannot  escape  from  the  obligation  of 
their  contract  because  they  have 
been  mistaken  or  disappointed  in  the 
quality  of  the  article  purchased.  In 
the  absence  of  a  warranty  the  prin- 
ciple of  caveat  emptor  applies,  and 
the  buyer  takes  the  risk  of  quality 
upon  himself."  Wheat  v.  Cross  (1869), 
31  Md.  99,  1  Am.  R  28. 

•iHecht  v.  Batcheller  (1888),  147 
Mass.  335, 17  N.  E.  R  651.  9  Am.  St.  R. 
708.  "The  note  delivered,"  said  the 
court,  "  was  the  same  note  which  the 
parties  bought  and  sold.  They  may 
both  have  understood  that  the  mak- 
ers were  solvent,  whereas  they  were 
insolvent;  but  such  a  mistake  or  mis- 
apprehension affects  the  value  of  the 
note,  and  not  its  identity.  .  »  . 
The  makers  of  the  note  had  made  an 
assignment  for  the  benefit  of  their 
creditors,  but  this  did  not  extinguish 
the  note  or  destroy  its  identity.  It 
remained  an  existing  note,  capable 
of  being  enforced  with  every  essen- 
tial attribute  going  to  its  nature  as 
a  note  which  it  had  before.  Its 
quality  and  value  were  impaired,  but 
not  its  identity.  The  parties  bought 
and  sold  what  they  intended,  and 
their  mistake  was  not  as  to  the  sub- 
ject-matter of  the  sale,  but  as  to  its 
quality.'' 


The  same  result  was  reached  in 
Sample  v.  Bridgforth  (1894),  72  Miss. 
293, 16  S.  R  876,  where  the  parties  to 
the  sale  and  purchase  of  a  note  mis- 
takenly supposed  it  was  secured  by 
a  first  mortgage,  but  this  was  held  to 
be  a  mistake  as  to  a  collateral  point 
which  affected  value  only  and  not 
identity. 

But  where  one  sells  promissory 
notes  at  less  than  their  face,  repre- 
senting them  to  be  business  papers 
when  in  fact  they  are  accommoda- 
tion notes,  and  thus  usurious  and 
void  in  the  hands  of  the  vendee,  the 
latter  may  rescind  the  contract  and 
recover  back  the  purchase-money  al- 
though there  be  no  fraud  or  war- 
ranty. Said  the  court:  "It  is  a  gen- 
eral rule  that  upon  the  sale  and 
delivery  of  personal  property  with- 
out fraud  or  warranty,  no  action  will 
lie  against  the  vendor  to  recover 
damages  for  any  defects  which  may 
exist;  and  this  rule  applies  when  the 
article  differs  from  the  representa- 
tions of  the  seller  as  to  quality,  un- 
less such  representations  were  fraudu- 
lent. But  when  the  thing  sold  differs 
in  substance  from  what  the  pur- 
chaser was  led  by  the  vendor  to  be- 
lieve he  was  buying,  and  the  differ- 
ence in  subject-matter  is  so  substan- 
tial and  essential  in  character  as  to 
amount  to  a  failure  of  consideration, 
there  is  no  contract,  and  the  pur- 
chaser may  recover  back  the  money 
paid."  Webb  v.  Odell  (1872),  49  N.  Y. 
583. 


261 


§  278.] 


LAW    OF    SALE. 


[book  I. 


ing  of  the  rules  just  referred  to,  that  it  will  prevent  the  for- 
mation of  the  contract.  Thus  where  both  parties,  negotiating 
at  Burlington,  Vermont,  supposed  the  property  to  be  in  the 
custody  of  a  storekeeper  at  Whitehall,  where  the  buyer  desired 
to  receive  it,  when  in  fact  it  had  been  forwarded  to  Boston 
and  there  commingled  with  the  goods  of  a  commission  mer- 
chant, it  was  held  that  the  mistake  was  so  material  that,  if  the 
fact  had  been  known,  the  contract  would  not  have  been  en- 
tered into,  and  therefore  that  no  title  passed.1 

§278.  Mistake  as  to  terms  of  contract  —  Price. —  There 
may  also  be  mistake  as  to  the  terms  of  the  contract.  The  mis- 
take most  commonly  made,  perhaps,  is  in  reference  to  the  price. 
If  the  parties  are  mutually  mistaken,  as  where  'an  offer  of  a 
certain  price  for  shingles  was  understood  by  the  seller  to  be  so 
much  per  bunch  and  by  the  buyer  to  be  so  much  per  thou- 
sand —  a  material  difference, —  it  was  held  that  there  was  no 
contract 2     So  where  one  party  alone  is  in  error,  but  the  other 


1  Ketchum  v.  Catlin  (1849),  21  Vt. 
191.  "If  a  contract,"  it  was  said, 
"  is  made  in  mutual  error  of  material 
facts  which  have  induced  the  con- 
tract, it  is  invalid  and  may  be  set 
aside.  This  is  upon  the  principle, 
mainly,  that  when  the  parties  are 
under  a  mutual  mistake  as  to  mate- 
rial facts,  affecting  the  subject-mat- 
ter of  the  contract,  there  is  a  want 
of  a  binding  assent,  and  we  think  a 
contract  so  made  may  be  avoided  in 
a  court  of  law."  To  like  effect:  Be- 
dell v.  Wilder  (1892),  65  Vt.  406,  26 
Atl.  R.  589,  36  Am.  St.  R  871. 

2  Greene  v.  Bateman  (1846),  2 
Woodb.  &  M.  359,  Fed.  Cas.  No.  5762. 

Where  the  owner  of  a  mare  asked 
$165  for  her,  and  the  purchaser  un- 
derstood the  price  asked  to  be  $65, 
and  took  her  home  with  him  and  re- 
fused to  pay  more  than  the  latter 
named  sum,  there  being  a  clear  mis- 
understanding between  the  parties, 


it  was  held  that  there  was  no  sale, 
and  consequently  no  title  passed. 
Rupley  v.  Daggett  (1874),  74  111.  351. 

And  so  in  Rovegno  v.  Defferari 
(1871),  40  Cal.  459,  where  the  seller 
understood  that  he  was  selling  at  one 
price  while  the  buyer  understood 
that  he  was  buying  at  a  different 
price.  To  like  effect,  also,  in  Phil- 
lips v.  Bistolli,  2  B.  &  Cr.  511,  where  a 
foreigner,  not  familiar  with  English, 
supposed  he  was  buying  an  article  at 
auction  at  forty-eight  guineas  while 
the  auctioneer  understood  the  bid  to 
be  eighty-eight  guineas. 

So  in  Hogue  v.  Mackey  (1890),  44 
Kan.  277,  24  Pac.  R.  477,  where  one 
of  the  parties  undei-stood  that  the  in- 
stalments of  the  price  were  to  be 
paid  at  intervals  of  thirty  days,  and 
the  other  understood  the  interval  to 
be  ninety  days,  there  was  held  to  be 
no  sale. 


262 


CII<  vi.]  CONTRACT   OF    SALE  —  IN    GENERAL.  [§  279. 

is  aware  of  it  and  "snaps  at  an  offer  which  he  perfectly  well 
knows  to  be  made  by  mistake,"  there  is  no  contract.1  But 
where  one  party  is  in  error,  while  the  other  is  ignorant  of  it  — 
as  where  a  party  who  makes  an  offer  has  made  an  error  in  his 
calculations  upon  which  the  offer  was  based,  and  the  other  ac- 
cepts in  good  faith  and  the  contract  is  completed,— the  con- 
tract cannot  be  defeated.3 

§  279.  Mistake  as  to  possibility  of  performance.—  The  gen- 
eral question  of  the  effect  of  impossibility  as  an  excuse  for  the 
non-performance  of  the  contract  will  be  considered  in  later 
sections ; 3  but  there  may  arise  such  aspects  of  it  as  are  germane 
to  the  present  discussion.  It  must  be  assumed,  ordinarily,  that 
the  parties  to  a  contract  contemplate  its  performance,  and  that 
they  believe  it  possible  to  perform  it  according  to  its  terms. 
Hence,  if,  through  mutual  error  as  to  facts,  they  stipulate  for 
things  impossible  of  accomplishment,  or  if  in  a  contract  of  sale 
of  machinery,  for  example,  they  fix  a  standard  of  performance 
which  it  is  impossible  to  realize,  "the  contract  which  they  in- 
tended to  establish  on  that  foundation  falls  when  the  founda- 
tion itself  is  discovered  to  have  no  existence."  * 

iHarran  v.  Foley  (1885),  62  Wis.  *In    Nordyke   &  Marmon  Co.  v. 

584  22NW.R.  837,  where  the  seller  Kehlor  (1900),  155  Mo.  643,  56  S.  W. 

intended  to  offer  cattle  for  $261.50,  R  287,  the  parties  stipulated  that 

but  by  slip  of  tongue  said  $161.50,  milling  machinery  should  be  capable 

and  the  buyer  having  good  reason  to  of  producing  a  certain  quantity  ot 

believe  that  it  was  a  mistake  imme-  flour  "fully  equal  in  quality  to  the 

diately  made  a  payment  to  bind  the  best  fifty-five  per  cent,  that  Kelly  & 

bargain,    and    claimed    the    cattla  Lysle  can  make  in  their  mill.     Both 

(Webster  v.  Cecil,  30  Beav.  62,  and  parties    supposed  that  the  mill  ot 

Tamplin  v.  James,  L,  R  15  Ch.  Div.  Kelly  &  Lysle  produced  flour  of  the 

221,  were  cited.)  To  like  effect;  Shel-  grade  specified,  but  it  in  fact  did 

ton  v.  Ellis  (1883),  70  Ga.  297.  not  and  could  not  without  change. 

2  Griffin   v    O'Neil  (1892),  48  Kan.  It  was  held  that,  on  the  discovery  ot 
117  29  Pac.  R.  143.  the  facts,  the  seller  was  justified  in 

3  See  post,  §§  830-844  abandoning  the  undertaking. 

263 


CHAPTER  TIL 


OF  THE  CONTRACT  OF  SALE  UNDER  THE  STATUTE  OF  FRAUDa 


§  280.  Purpose  of  this  chapter. 

281.  Sales  prior  to  the  statute. 

I.  The  Statute. 

282,  283.  The  seventeenth  section 

of  the  statute  of  frauds. 
284.  English  sale  of  goods  art. 
285-290.  Statutes  in  United  States. 

291.  General  effect  of  the  statutes. 

IL  What  are  Contracts  for  the 
Sale  op  Goods,  Wares  and 
Merchandise. 

292.  Importance  of  this  question. 
1.  Executory  Contracts. 

293.  Statute  applies  to  executory- 

contracts. 

2.  Contracts  of  Sale  or  Manufacture. 

294.  Statute  applies  only  to  con- 

tracts of  sale  and  not  for 
manufacture. 

295-297.  English  cases  —  Immedi- 
ate sale  as  the  test. 

298,  299.  Impossibility  of  pres- 
ent delivery  as  the  test  — 
Goods  not  in  existence. 

300.  Work  on  one's  own  ma- 
terials as  the  test. 

301.  Whether  work  or  mate- 
rials is  the  essence  of  the 
contract,  as  the  test. 

302.  303.  The  present  English 

test. 

304,  305.  American  cases  —  The 
rule  in  New  York. 

306, 307.  The  rule  in  Massa- 
chusetts. 


§  308-310.  The  rule  in  Vermont, 

Oregon,  Washington  and 
Michigan, 

311-313.  The  rule  in   Maine 

and  New  I  [ampshire. 

314,  315.  The  rule  in  Wiscon- 
sin and  California 

316.  The  rule  in  New  Jersey. 

317.  The  rule  in  New  Mexico. 

318.  The  rule  in  Colorado. 

319.  The  rule  in  Minnesota. 

320.  The  rule  in  Missouri. 

321.  322.  The  rule  in  Georgia. 

323.  The  rule  in  Maryland. 

324,  325.  The  rule  in  Iowa, 

326.  The  true  rule. 

3.  Auction  Sale. 

327.  Auction  sales  within  the  stat- 

ute. 

328.  Contracts   of    barter    or    ex- 

change within  the  statute. 

III.  What  are  Goods,  Wares  and 
Merchandise. 

329. 


English    rule    includes    only 
corporeal  movable  property. 

Rule  in  United  States  more 
comprehensive. 

What  included  —  Stocks  — 
Notes  —  Inventions. 
332-335.  Fixtures. 


330. 


331. 


36-339. 


Growing  trees. 


340-344. Growing  crops. 

345.  Crops  to  be  raised. 

346.  Uncut  ice. 

347.  Minerals. 


264 


CH, 


VIT.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS. 


IV.  Of  the  Price  or  Value. 

§  348.  Operation  of  the  statute. 

349,350.  Sale  of  several  articles 
aggregating  more  than  the 
limit. 

851  Sale  of  various  articles  at  auc- 
tion. 

Soi.  How  when  amount  uncertain 
at  time  of  sale. 

V.   Of  AcceptaX'T.   and  Receipt. 

853.  What  the  statute  requires. 
854  Delivery,  acceptance  and  act- 
ual receipt  required. 

1.  Of  Delivery  by  the  Seller. 
855.  Necessity  of  delivery. 

Delivery  alone  not  enough. 

2.  Of  Acceptance  by  the  Buyt  r. 

857.  Acceptance  must  be  shown. 

338.  Must   be  voluntary   and 

unconditional 

359.  No  acceptance    while 

awaiting  test  or  opportu- 
nity for  examination. 

300,361.  Acceptance  may  be  im- 
plied. 

362.  When  acceptance  must  occur. 

363.  Who  may  accept  — Agent 
361  Tenant  in  common. 

365.  Carrier. 

366.  Administrator. 

367.  That  buyer  ought  to  accept, 

not  enough. 
368,370.  Whether  acceptance  must 
be  final  and  conclusive. 

371.  Acceptance  of  unfinished 

article. 

372.  Burden  of  proof  as  to  accept- 

ance. 

373.  Question  for  the  jury. 

371  Right  of  seller  to  retract  be- 
fore acceptance. 

3.  Of  Receipt  by  the  Buyer. 

375.  Necessity  of  receipt. 

376.  Nature  of  receipt  required. 


377.  Fact    that  title  would  have 

passed  not  enough. 

378,  379.  Constructive  delivery  and 

receipt. 

330,  381.  What  sufficient 

382,383.  Mere  words  do  not  con- 
stitute delivery  and  receipt. 

384,385.  Delivery  and  receipt 
where  goods  still  remain  in 
seller's  possession. 

386.  Goods  remaining  in  sell- 
er's possession  as  seller. 

387,388.  Delivery  and  receipt 
where  goods  are  in  posses- 
sion of  third  person. 

389.  Delivery    and    receipt  where 

goods  are  already  in  posses- 
sion of  purchaser. 

390.  Delivery    where    seller    and 

buyer  occupy  same  premises. 
891,  393.  Receipt  by  common  agent 
89a  (airier  as  agent  to  re- 
ceive. 
391  Acceptance  and  receipt  may 
precede  passing  of  title. 

395.  Receipt  and  acceptance  may 

be  complete  though  terms 
of  contract  in  dispute. 

396.  No  title   passes  until  receipt 

and  acceptance. 

397.  Question    of   receipt   for  the 

jury. 
1  Part  of  the  Goods  Sold. 

398.  Acceptance  and  receipt  of  part 

of  goods  suffices. 

399.  Any    part,    though    small, 

enough. 

400.  But  it  must  actually  be  a  part 
of  the  goods  sold— Sample- 
Specimen. 

401  At  what  time  part  may  be  ac- 
cepted and  received. 

402.  After  part  acceptance,  loss  of 
remainder  falls  on  buyer. 

403.  Acceptance  and  receipt  of  part 
must  be  in  pursuance  of  the 

contract 


265 


LAW    OF    SALE. 


[BOOK   I. 


5.  Earnest  or  Part  Payment, 
a.  Of  Earnest. 
§  404.  Earnest  and  part  payment  syn- 
onymous. 

405.  Thing  in  earnest  must  be  act- 

ually given. 

406.  Must  be  a  thing  of  some  value. 

407.  Deposit  with  third  person  by 

way    of     forfeiture    not 
enough. 

408.  Effect  of  earnest  in  passing 

the  title. 
b.  Of  Part  Payment. 

409.  What  the  statute  requires. 

410.  The  amount  required. 

411.  What  may  be  paid. 

412.  Check. 

413.  Buyer's  note. 

414.  Note  of  stranger. 

415.  Money  already  in  hands 

of  seller. 

416.  Satisfaction  of  previous 

debt. 

417.  Payment  of  seller's  debt 

to  third  person. 

418.  Mere  unaccepted  payment  not 

enough. 

419.  420.  When  part  payment  to  be 

made. 

421.  Part  payment  to  agent  suffices. 
6.  The  Note  or  Memorandum. 

422.  What  the  statute  requires. 

a.  What  is  a  Note  or  Memorandum. 

423.  Is  distinct  from  the  agreement 

itself. 

424.  At  what  time  to  be  made. 

425.  Form  of  note  or  memorandum. 

426.  427.  Several  papers. 

428.  Letters. 

429.  Telegrams. 

430.  Books. 

431.  Records   of   corporate    meet- 

ings. 

432.  Not  necessary  that  note  be  ad- 

dressed to  or  pass  between 
the  parties. 

266 


>.  What  Note  or  Memorandum  is  Suf- 
ficient. 

433.  The  requisites  in  general. 

434.  Parties  must  be  named  or  de- 

scribed. 

435.  What    description  suffi- 
cient. 

436.  Agent  named  instead  of 

principal. 

437.  Goods  sold  must  be  stated  or 

described. 

438.  Price  must  be  shown. 

439.  Terms  of  credit  and  mode  of 

payment  must  be  stated. 

440.  Time   and  place  of  delivery 

must  be  stated  if  agreed 
upon. 

441.  All  other  material  terms  must 

be  included. 

442.  Consideration  need  not  be  ex- 

pressed unless  required  by 
statute. 

443.  Memorandum  must  show  com- 

plete contract. 

444.  Memorandum  must  import  a 

sale. 

445.  Parol  evidence  not  admissible 

to  supply  deficiencies. 

446.  447.  Parol  evidence  to  contra- 

dict complete  memoran- 
dum. 

448.  But     defendant    may    show 

memorandum,  relied  upon 
by  plaintiff,  to  be  incom- 
plete. 

c.  Of  the  Signing  by  the  Parties. 

449.  Whether    both  parties  must 

sign. 

450.  Written  offer    accepted 

by  parol. 

451.  How  to  be  signed. 

d.  Of  Signing  by  Agent. 

452.  Who  may  be  agent. 

453.  How  appointed. 

454. Several  owners  —  One  as 

agent  for  all. 


CH.  VII.]  CONTRACT    UNDER   STATUTE   OF   FRAUDS.       [§§  280,  2S1. 


455-45%  How  sign. 
•i.jQ.  One  person  as  agent  for  both 
parties. 

460.  Evidence  of  authority. 

461.  Signing  by  auctioneer. 

462.  Auctioneer    selling    his    own 

goods  cannot  sign  for  both. 
463-466.  Broker  as  agent  for  both 
parties. 

467.  "Bought  and  sold  notes"  in 

English  practice* 

468.  English  rules  governing. 


§  469.  Bought    and   sold  notes 

in  the  United  States. 

470.  Revocation    of    broker's 

authority. 

471.  Signing  by  one  partner. 

e.  Of  Alteration  of  the  Memorandum. 

472.  Effect  of  alteration. 

473.  Memorandum  not  to  be  altered 

by  parol. 

474.  Discharge  or  substitution  of 

agreement  may  be  shown. 


§  2S0.  Purpose  of  this  chapter. —  Having  now  considered 
the  nature  of  the  contract  of  sale,  its  parties,  the  subject-mat- 
ter and  the  price,  there  remains  to  be  considered  the  effect  of 
the  statute  of  frauds  upon  the  negotiations  of  the  parties. 

§  281.  Sales  before  the  statute. —  The  effect  of  this  famous 
statute  can  perhaps  best  be  made  manifest  by  recalling  first 
the  requisites  of  a  valid  contract  of  sale  at  common  law  before 
the  passing  of  the  statute,  particularly  inasmuch  as  the  same 
requisites,  as  has  been  seen,  still  prevail  in  respect  of  those  con- 
tracts to  which  the  statute  does  not  apply. 

At  the  common  law,  as  was  seen  in  a  previous  chapter,  a 
contract  for  the  sale  of  goods  stands  upon  the  same  footing  as 
any  other  contract,  requiring  the  mutual  assent  of  competent 
parties  for  a  consideration.  Neither  a  written  contract  or 
memorandum,  nor  an  entire  or  partial  delivery,  nor  an  entire 
or  partial  payment,  nor  the  payment  of  earnest,  is  indispensa- 
ble, but  it  is  sufficient  to  pass  the  title,  if  such  be  the  intention 
of  the  parties,  that  the  terms  are  definitely  agreed  upon  and 
the  chattel  is  distinguished,  identified  or  separated  from  the 
mass  of  which  it  forms  a  part.  The  purchaser  may  then  take 
possession  of  it,  upon  paying  or  tendering  the  price  agreed 
upon,  but  not  otherwise,  unless  a  credit  has  been  agreed  upon, 
in  which  case  the  vendor's  lien  does  not  attach.1 


i  Simmons  v.  Swift,  5  B.  &  C.  862;  Dixon  v.  Yates,  5  B.  &  Ad.  313;  Gil- 
mour  v.  Supple,  11  Moore,  P.  C.  566. 

267 


§§  2S2,  2S3.]  LAW  OF  SALE.  [book  I. 

A  more  detailed  examination  of  this  subject  will  be  made 
hereafter,  but  this  will  suffice  for  the  present  purposes  of  con- 
trast. 


The  Statute. 

§  282.  The  seventeenth  section  of  the  statute  of  frauds. 

This  being  the  state  of  the  common  law,  the  "  Act  for  the  pre- 
vention of  frauds  and  perjuries,"  commonly  known  as  the  Stat- 
ute of  Frauds,  was  passed  in  the  twenty-ninth  year  of  the  reign 
of  Charles  the  Second,  and  went  into  effect  on  the  2±th  day  of 
June,  1677.  Of  this  act,  the  seventeenth  section  chiefly  con- 
cerns the  present  inquiry,  and  reads  as  follows:  "And  bee  it 
further  enacted,  by  the  authority  aforesaid,  that  from  and  after 
the  said  fouer  and  twentyeth  day  of  June  noe  contract  for  the 
Sale  of  any  Goods,  wares,  or  Merchandises  for  the  price  of  ten 
pounds  Sterling  or  upwards  shall  be  allowed  to  be  good  except 
the  Buyer  shall  accept  part  of  the  goods  soe  sold  and  actually 
receive  the  same  or  give  something  in  earnest  to  bind  the  bar- 
gaine  or  in  part  of  payment,  or  that  some  Note  or  Memoran- 
dum in  writing  of  the  said  bargaine  be  made  and  signed  by 
the  partyes  to  be  charged  by  such  contract  or  their  agents 
thereunto  lawfully  authorized." 

283.  .  Afterwards,  because  of  conflicting  decisions  as 

to  the  application  of  this  statute  to  executory  agreements,  fur- 
ther legislation  became  desirable,  and  in  1S29  Lord  Tenter- 
den's  Act  declared  that  this  seventeenth  section  "shall  extend 
to  all  contracts  for  the  sale  of  goods  of  the  value  of  ten  pounds 
sterling  and  upwards,  notwithstanding  the  goods  may  be  in- 
tended to  be  delivered  at  some  future  time,  or  may  not  at  the 
time  of  such  contract  be  actually  made,  procured  or  provided, 
or  fit  or  ready  for  delivery,  or  some  act  may  be  requisite  for 
the  making  or  completing  thereof  or  rendering  the  same  fit 
for  delivery." 

2G3 


CH.  Til.]  CONTRACT   TJXDER   STATUTE   OF    FRAUDS.       [§§  284,285. 

These  two  statutes  are  now  construed  as  if  incorporated  to- 
gether, the  word  value  being  substituted  for  the  word  price  in 
the  original  act.1 

§284.  English  sale  of  goods  act. —  The  present  English 
statute2  upon  this  subject  provides  as  follows: 

"  (1)  A  contract  for  the  sale  of  any  goods  of  the  value  of  ten 
pounds  or  upward  shall  not  be  enforceable  by  action  unless  the 
buyer  shall  accept  part  of  the  goods  so  sold,  and  actually  re- 
ceive the  same,  or  give  something  in  earnest  to  bind  the  con- 
tract, or  in  part  payment,  or  unless  some  note  or  memorandum 
in  writing  of  the  contract  be  made  and  signed  by  the  party  to 
be  charged  or  his  agent  in  that  behalf. 

"  (2)  The  provisions  of  this  section  apply  to  every  such  con- 
tract, notwithstanding  that  the  goods  may  be  intended  to  be 
delivered  at  some  future  time,  or  may  not  at  the  time  of  such 
contract  be  actually  made,  procured  or  provided,  or  fit  or  ready 
for  delivery,  or  some  act  may  be  requisite  for  the  making  or 
completing  thereof,  or  rendering  the  same  fit  for  delivery. 

"  (3)  There  is  an  acceptance  of  goods  within  the  meaning  of 
this  section  when  the  buyer  does  any  act  in  relation  to  the 
goods  which  recognizes  a  pre-existing  contract  of  sale,  whether 
there  be  an  acceptance  in  performance  of  the  contract  or  not. 

"  (4)  The  provisions  of  this  section  do  not  apply  to  Scot- 
land." 

§  285.  The  statutes  in  the  United  States. —  Statutes  sub- 
stantially similar  to  the  English  act  have  been  adopted  in  many, 
but  not  all,  of  the  United  States.  No  attempt  will  be  made  to 
give  the  language  of  these  statutes  in  full,  as  they  are  collected 
in  the  various  treatises  on  the  subject  of  the  statute  and  else- 
where, but  the  following  summary  of  them,  so  far  as  applicable 
to  the  contracts  for  the  sale  of  goods,  will  sufficiently  indicate 
their  character: 


i  Scott  v.  Railway  Co.,  12  M.  &  W.        2  Sale  of  Goods  Act,  ch.  71,  56  &  57 
38;  Harman  v.  Reeve,  18  C.  B.  587.        Vict.  1894,  §  4. 

269 


§§  286-288.]  law  of  sale.  [book  i. 

§  286.  .  In  Arkansas,1  Georgia,2  Massachusetts,3  Maine,4 

Maryland,5  Michigan,6  Missouri,7  New  Hampshire,8  New  Jer- 
sey,9 South  Carolina,10  Vermont11  and  "Washington  12  the  lan- 
guage is  "  contract  for  the  sale  of  goods,  wares  and  merchan- 
dise." 

§  287. .  In  South  Dakota,13  Colorado,14  Idaho,15  Minnesota,16 

Nebraska,17  Nevada,18  New  York,19  Utah,20  Wisconsin21  and  Wy- 
oming22 the  words  used  are  "  contract  for  the  sale  of  goods,  chat- 
tels or  things  in  action."  In  California,23  Connecticut,24  Mon- 
tana,25 Oregon26  and  North  Dakota27  the  words  are  "agreement 
for  the  sale  of  any  personal  property."  In  Iowa28  the  statutory 
language  is  the  same,  but  unlike  the  English  and  most  of  the 
American  statutes  the  act  is  content  with  forbidding  evidence 
to  be  given  of  the  unwritten  contract.  The  Indiana29  statute 
invalidates  a  "contract  for  the  sale  of  any  goods;"  and  in 
Florida30  and  Mississippi31  the  wording  is  "contract  for  the  sale 
of  any  personal  property,  goods,  wares  or  merchandise." 

§  288.  .  In  Arkansas,  California,  Colorado,  Idaho,  In- 
diana, Massachusetts,  Michigan,  Minnesota,  Mississippi,  Mis- 
souri, Montana,  Nebraska,  Nevada,  New  Hampshire,  New 
Jersey,  New  York,  North  Dakota,  Oregon,  South  Carolina, 

i  Digest  of  Statutes  1894.  §  3470.  "  General  Statutes  1885,  §  2631. 

2  Code  of  Statutes  1895,  §  2693.  "  Revised  Statutes  1896,  p.  1886,  §  3. 

3  Public  Statutes  1882,  ch.  78,  §  5.  20  Revised  Statutes  1898,  §  2469. 

4  Revised  Statutes  1883,  ch.  Ill,  §4  21  Sanborn    &  Berryuian    Statutes 

5  Corbet  v.  Wolford,  48  Md.  426.  1898,  §  2308. 

e  Compiled  Laws  1897,  §  9516.  22  Revised  Statutes  1887,  §  1250. 

7  Revised  Statutes  1889,  §  5187.  23Deering's  Statutes,  §  1739;   Civ. 

8  General  Laws  1878,  ch.  220,  §  16.  Code,  Div.  III. 

9  General  Statutes  1895,  p.  1603,  §  6.       24  General  Statutes  1888,  §  1367. 
i«  Revised  Statutes  1893,  vol  I,  §  2152.       25  Civil  Code,  £  2340. 

11  Statutes  1894,  §  1225.  26  Hill's  Annotated  Laws  1892,  §  785. 

12  General  Laws  1897,  §  4577.  27  Revised  Statutes  1895,  §  3958. 

13  Compiled  Laws  of  Dakota  1887.  23  Code  of  1897,  §  4625. 

"  Mill's  Statutes,  §  2025.  29  Revised  Statutes  1897,  §  6944 

15  Revised  Statutes  1887,  §  6009.  30  Revised  Statutes  1892,  §  1996. 

i6  General  Statutes  1894,  §  4210.  31  Code,  §  4229. 

"  Compiled  Statutes  1897,  §  3183. 

270 


CH.  VII.]  CONTRACT    UXDEK   STATUTE    OF   FRAUDS.       [§§  289-291. 

South  Dakota,  Vermont,  Utah,  Washington,  Wisconsin  and 
"Wyoming  the  word  price  is  used.  In  Connecticut,  Florida  and 
Maine,  neither  the  word  price  nor  value  is  used,  but  simply 
"  agreement  for  the  sale  of  personal  property."  In  Maryland ' 
and  South  Carolina  the  English  statute  is  adopted.  In  Georgia 
the  words  "  to  the  amount  of  "  are  used.2 

§  2S9.  .  In  Connecticut,   Colorado,   Georgia,   Indiana, 

Massachusetts,  Michigan,  Minnesota,  Mississippi,  Nebraska, 
Nevada,  New  York,  North  Dakota,  Oregon,  South  Carolina, 
South  Dakota,  Washington,  Wisconsin  and  Wyoming,  the 
amount  is  fixed  at  fifty  dollars;  in  Arkansas,  Maine,  Missouri 
and  New  Jersey  at  thirty  dollars;  in  California,  Idaho,  Mon- 
tana and  Utah  at  two  hundred  dollars;  in  New  Hampshire  at 
thirty-three  dollars;  in  Vermont  at  forty  dollars;  and  in  Florida 
no  limit  is  prescribed. 

§  290.  .  In  Alabama,  Arizona,  Delaware,  Illinois,  Kan- 
sas, Kentucky,  Louisiana,  New  Mexico,3  North  Carolina,  Ohio, 
Pennsylvania,  Ehode  Island,  Tennessee,  Texas,  Virginia  and 
West  Virginia  no  provision  similar  to  the  seventeenth  section 
seems  to  have  been  adopted. 

§  291.  The  general  effect  of  the  statute. —  The  general  ef- 
fect of  the  statute,  in  the  cases  to  which  it  applies,  will  be  seen 
to  consist  chiefly  in  the  introduction  of  a  new  rule  of  evidence 
which  requires  a  kind  of  proof  that  the  common  law  did  not 
deem  necessary.     This  rule  demands  either  — 

(a)  An  actual  receipt  and  acceptance  of  a  part  of  the  goods,  or 

(b)  the  giving  of  something  in  earnest  to  bind  the  bargain,  or 

(c)  a  part  payment,  or 

1  Corbett  v.  Wolford,  84  Md.  426,  35  adopt  the  fourth  section  of  the  Eng- 
Atl.  R.  1088.  lish  statute,  but  are  silent  as  to  the 

2  For  reference  to  the  various  stat-  seventeenth  section,  although  the 
utes  see  supra.  reasoning  might  well  apply  to  either 

3  In  Childers  v.  Talbott,  4  N.  M.  336,  section. 
16  Pac.  R.  275,  the  supreme  court 

271 


§§  292,  293.]  law  of  sale.  [book  i. 

(d)  a  note  or  memorandum  in  writing  of  the  bargain,  signed 
by  the  party  to  be  charged  thereby  or  by  his  agent  thereunto 
duly  authorized 

II. 

What  are  Contracts  for  the  Sale  of  Goods,  Wares  and 

Merchandise. 

§  292.  Importance  of  this  question. —  One  of  the  most  im- 
portant and  difficult  of  the  questions  presenting  themselves 
under  the  provisions  of  this  statute  is,  What  is  a  contract  for 
the  sale  of  goods,  wares  and  merchandise  within  its  operation  ? 
Does  it  apply  to  executory  agreements  or  only  to  the  completed 
contract?  Is  there  a  contract  for  the  sale  when  the  goods  are 
not  in  esse,  but  are  to  be  grown,  produced  or  manufactured? 

1.  Executory  Contracts. 

§  293.  Statute  applies  to  executory  contracts. —  It  was 

thought  at  one  time  in  England  that  the  statute  had  no  appli- 
cation to  the  case  of  executory  contracts  by  which  the  present 
title  was  not  conveyed,  but  this  question  was  set  at  rest  by 
Lord  Tenterden's  Act,1  and  the  application  of  the  statute  to  such 
contracts  has  always  been  recognized  by  the  courts  of  the 
United  States.  Thus  it  is  said  in  a  leading  case2  in  Connecti- 
cut: "It  seems  now  to  be  well  settled,  in  accordance  with  the 
rules  of  just  interpretation,  as  well  as  the  dictates  of  reason 
and  common  sense,  that  a  contract  for  the  sale  of  goods  is  not 
without  the  purview  of  the  statute  merely  because  it  is  execu- 
tory." 

1  See  ante,  §  283.  Hargreaves  (1885),  47  N.  J.  L.  334,  54 

2  Atwater  v.  Hough  (1861),  29  Conn.  Am.  R.  162];  Edwards  v.  Grand  Trunk 
508,  79  Am.  Dec.  229.  To  the  same  Ry.  Co.  (1860),  48  Me.  379,  54  Me.  105; 
effect:  Mechanical  Boiler  Cleaner  Co.  Ide  v.  Stanton  (1843),  15  Vt.  685,40 
v.  Kellner  (1899),  62  N.  J.  L.  544,  43  Am.  Dec.  698;  Downs  v.  Ross  (1840). 
Atl.  R.  599  [citing  Carman  v.  Smick  23  Wend.  (N.Y.)  270;  Hanson  v.  Rolter 
(1836),  15  N.  J.  L.  252;  Finney  v.  Apgar  (1885),  64  Wis.  622. 

(1865),  31  N.  J.  L.  206;  Pawelski  v. 

272 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF   FRAUDS.       [§§  294,  295. 

2.  Contracts  of  Sale  or  for  the  Manufacture  of  Goods. 

§  294.  Statute  applies  only  to  contracts  for  the  sale  and 
not  for  the  manufacture  of  goods. —  The  statute  of  frauds, 
by  its  express  terms,  applies  only  to  contracts  for  the  sale  of 
goods,  wares  and  merchandise,  and  not  to  contracts  for  their 
manvfacture.  In  the  abstract,  the  distinction  between  a  con- 
tract for  the  sale  of  goods  and  a  contract  for  the  manufacture 
of  goods  seems  clear  enough,  but  in  respect  of  the  application 
of  this  statute  the  question  is  one  of  the  most  confused  and 
perplexing  in  the  law.  Most  goods  have  to  be  manufactured, 
and  the  seller  is  often  the  manufacturer.  If  a  contract  is  made 
with  such  a  seller  for  the  sale  of  goods  of  the  kind  he  makes, 
and  he  happens  not  to  have  them  already  made,  he  must  set 
at  work  to  manufacture  them.  The  fact  that  he  will  or  must 
so  manufacture  them  may  have  been  clearly  within  the  con- 
templation of  both  parties  at  the  time  they  made  the  contract. 
Is  the  contract,  then,  one  for  the  manufacture  or  the  sale  of 
the  goods?  Suppose,  further,  that  in  the  particular  case  the 
goods  are  not  of  the  kind  that  the  party  usually  manufactures, 
but  are  to  be  made  in  accordance  with  some  special  ideas  or 
needs  of  the  other.  Is  it  now  a  contract  for  manufacture  or  sale? 
Suppose,  still  further,  that  the  goods  are  such  as  the  maker 
never  produces  except  upon  the  order  and  to  suit  the  case  of 
the  person  who  orders  them,  as  in  the  case  of  a  contract  to 
supply  a  set  of  artificial  teeth ;  what  kind  of  a  contract  is  this  — 
for  manufacture  or  sale  ? 

Quite  widely  differing  views  have,  not  unnaturally,  been 
taken  of  these  questions,  and  a  full  exposition  of  the  subject 
can  scarcely  be  made  without  setting  forth  at  some  length  a 
few  of  the  leading  cases.  Beginning  with  the  early  English 
cases,  the  following  will  indicate  the  manner  in  which  the  sub- 
ject has  developed: 

§295.  English  cases  —  Immediate  sale  as  the  test. —  In 

1724  the  case  of  Towers  v.  Osborne1  came  before  Chief  Justice 

1  (1724)  1  Strange,  506. 
18  273 


§§  296,  297.]  law  of  sale.  [book  r. 

Pratt.  The  report  is  very  brief,  and  may  be  reproduced  en- 
tire. "  The  defendant  bespoke  a  chariot,  and  when  it  was  made 
refused  to  take  it;  and  in  an  action  for  the  value  it  was  ob- 
jected that  they  should  prove  something  given  in  earnest,  or  a 
note  in  writing,  since  there  was  no  delivery  of  any  part  of  the 
goods.  But  the  chief  justice  ruled  this  not  to  be  a  case  within 
the  statute  of  frauds,  which  relates  only  to  contracts  for  the 
actual  sale  of  goods,  where  the  buyer  is  immediately  answer- 
able, without  time  given  him  by  special  agreement,  and  the 
seller  is  to  deliver  the  goods  immediately." 

§  296.  .  This  case  was  said  to  be  "  directly  in  point "  in 

Clayton  v.  Andrews,1  a  case  which  came  before  Lord  Mansfield 
in  1767.  There  the  defendant  had  "  agreed  to  deliver  one  load 
and  a  half  of  wheat  to  the  plaintiff  within  three  weeks  or  a 
month  from  the  said  agreement,  at  the  rate  of  twelve  guineas 
a  load,  to  be  paid  on  delivery;  which  wheat  was  understood 
by  both  parties  to  be  at  that  time  unthrashed.  No  part  of  the 
said  wheat  so  sold  was  delivered;  nor  any  money  paid  by  way 
of  earnest  for  the  same;  nor  any  memorandum  thereof  made 
on  writing."  The  question  was  whether  the  contract  was 
within  the  statute.  The  trial  judge  had  held  the  case  not  to 
be  within  the  statute,  relying  upon  Towers  v.  Osborne,  and  the 
court  of  king's  bench  concurred. 

§  297.  .  Both  of  these  cases,  however,  were  distinguished 

and  put  on  different  ground  twenty-five  years  later  in  Rondeau  v. 
Wyatt,2  before  Lord  Loughborough.  The  defendant  here  "  had 
entered  into  a  verbal  agreement  to  sell  and  deliver  three  thou- 
sand sacks  of  flour  to  the  plaintiff,  to  be  put  in  sacks  which  the 
plaintiff  was  to  send  to  the  mill,  and  shipped  on  board  vessels 
to  be  provided  by  him  in  the  river,  on  an  express  condition 
that  the  flour  should  be  exported  to  foreign  ports."  The  ex- 
portation proving  to  be  impossible,  the  defendant  refused  to 
deliver  the  flour  and  an  action  for  damages  ensued.  The  de- 
fense was  based  upon  the  statute  of  frauds,  and  the  court  of 

i  (1767)  4  Burrows,  2101.  2  (1799)  3  Henry  Blackstone,  63. 

274 


CH.  VII. J  CONTRACT    UNDER    STATUTE    OF    FRAUDS.  [_§   ^98. 

common  pleas  sustained  the  defense.  Referring  to  the  two 
cases  already  noticed  Lord  Loughborough  said:  "The  case  of 
Towers  v.  Osborne  was  plainly  out  of  the  statute,  not  because 
it  was  an  executory  contract,  as  it  has  been  said,  but  because  it 
was  for  work  and  labor  to  be  done,  and  materials  and  other 
necessary  things  to  be  found,  which  is  different  from  a  mere 
contract  of  sale,  to  which  species  of  contract  alone  the  statute 
is  applicable.  In  Clayton  v.  Andrews,  which  was  on  an  agree- 
ment to  deliver  corn  at  a  future  period,  there  was  also  some 
work  to  be  performed,  for  it  was  necessary  that  the  corn  should 
be  threshed  before  the  delivery.  This,  perhaps,  may  seem  to 
be  a  very  nice  distinction,  but  still  the  work  to  be  performed 
in  threshing  made,  though  in  a  small  degree,  a  part  of  the  con- 
tract." 

§  298.  Impossibility  of  present  delivery  as  the  test  — 

Goods  not  in  existence. —  In  lSli  the  case  of  Groves  v.  Buck* 
was  decided.  Here  "  the  defendant  agreed  by  parol  to  pur- 
chase of  the  plaintiff,  for  a  sum  exceeding  1<>/.,  a  quantity  of 
oak  pins,  which  were  not  then  made,  but  were  to  be  cut  of  slabs 
and  delivered  to  the  defendant  at  Weymouth."  In  an  action 
for  not  accepting  the  pins  the  statute  of  frauds  was  again  relied 
upon,  and  the  three  cases  above  referred  to  were  cited.  Lord 
Ellen  borough  said :  "  The  subject-matter  of  this  contract  did  not 
exist  in  rerum  natura;  it  was  incapable  of  delivery  and  of  part 
acceptance,  and  where  that  is  the  case  the  contract  has  been 
considered  as  not  within  the  statute  of  frauds.  In  Rondeau  v. 
Wyatt  the  thing  contracted  for  existed  in  the  very  shape  and 
substance  in  which  it  was  to  be  delivered;  and  it  was  held  that 
the  circumstance  of  its  being  to  be  shipped  on  board  vessels, 
to  be  provided  by  the  buyer,  for  exportation,  did  not  take  the 
case  out  of  the  statute.  And  that  is  very  good  sense,  for  if  the 
thing  be  capable  of  delivery  at  the  time,  why  is  it  not  done; 
but  the  same  reason  does  not  apply  where  the  goods  are  not 
deliverable." 

1(1814)  3  Maule  &  Selwyn,  17a 

275 


§§  299,  300.]  LAW    OF   SALE.  [book   I. 

§  299.  .  In  Garbuttv.  Watson,1  decided  in  1822,  the  same 

distinction  was  made.  There  it  appeared  that  the  plaintiffs, 
who  were  millers,  made  an  agreement  with  the  defendant,  a 
corn-merchant,  for  the  sale  of  one  hundred  sacks  of  flour  at 
50s.  per  sack,  to  be  got  ready  by  the  plaintiffs  to  ship  to  the 
defendant's  order.  There  was  no  memorandum  or  earnest.  The 
flour  at  the  time  of  the  bargain  was  not  prepared,  so  as  to  be 
capable  of  being  immediately  delivered  to  the  defendant.  In 
an  action  by  the  sellers  the  defense  of  the  statute  was  inter- 
posed and  the  four  preceding  cases  were  discussed.  The  plaint- 
iffs were  nonsuited.  Abbott,  C.  J.,  said :  "  In  lowers  v.  Osborne, 
the  chariot  which  was  ordered  to  be  made  would  never,  bat 
for  that  order,  have  had  any  existence.  But  here  the  plaint- 
iffs were  proceeding  to  grind  the  flour  for  the  purposes  of  gen- 
eral sale,  and  sold  this  quantity  to  the  defendant  as  part  of 
their  general  stock.  The  distinction,  indeed,  is  somewhat  nice, 
but  the  case  of  Towers  v.  Osborne  is  an  extreme  case  and  ought 
not  to  be  carried  further.  I  think  this  case  was  rightly  de- 
cided, the  contract  being  one  for  the  sale  of  goods  and  falling 
within  the  seventeenth  section  of  the  statute  of  frauds."  Bay- 
ley,  J.,  said:  "The  nearest  case  to  this  is  Clayton  v.  Andrews. 
But  that  decision  was,  as  it  seems  to  me,  corrected  by  Rondeau 
v.  Wyatt.  This  was  substantially  a  contract  for  the  sale  of  flour, 
and  it  seems  to  me  immaterial  whether  the  flour  was  at  the 
time  ground  or  not.  The  question  is  whether  this  was  a  con- 
tract for  goods,  or  for  work  and  labor  and  materials  found.  I 
think  it  was  the  former,  and  if  so,  it  falls  within  the  statute  of 
frauds."  Holroyd,  J.,  said:  "I  am  of  the  same  opinion.  I 
cannot  agree  with  the  judgment  of  the  court  in  Clayton  v.  An- 
drews. This  was  a  contract  for  the  sale  of  goods,  and  there- 
fore the  verdict  was  right." 

§  300. Work  on  one's  own  materials  as  test. —  In  Smith 

v.  Surman?  decided  in  1829,  it  appeared  that  the  plaintiff,  who 
was  the  owner  of  grounds  upon  which  were  growing  trees  which 

i  (1822)  5  Barn.  &  Aid.  613,  7  Eng.        2  (1829)  9  Barn.  &  Cress.  561, 17  Eng. 
Com.  L.  335.  Com.  Law,  253,  4  Man.  &  RyL  455. 

276- 


OH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.  [§  301. 

he  desired  removed,  had  ordered  them  cut  down.  "While  the 
work  was  going  on  and  after  part  had  been  felled,  defendant 
orally  bargained  for  the  timber  at  so  much  per  foot,  and  the 
trees  felled  and  to  be  felled  were  numbered.  The  defendant 
also  gave  some  instructions  as  to  the  manner  of  cutting.  The 
defendant  afterwards  refused  to  take  the  timber,  alleging  its 
unsoundness.  In  an  action  for  his  failure  to  take  and  pay  for 
the  timber  the  defendant  relied  upon  both  the  fourth  and  the 
seventeenth  sections  of  the  statute.  The  court  of  king's  bench 
held  that  this  was  not  a  contract  for  the  sale  of  an  interest 
in  lands,  and  was  therefore  not  within  the  provisions  of  the 
fourth  section,  but  that  it  was  a  contract  of  sale  within  the 
purview  of  the  seventeenth  section.  Bayley,  J.,  said :  "  It  seems 
to  me  that  the  true  construction  of  the  bargain  is,  that  it  is  a 
contract  for  the  future  sale  of  the  timber  when  it  should  be  in 
a  state  fit  for  delivery."  The  vendor,  so  long  as  he  was  felling- 
it  and  preparing  it  for  delivery,  was  doing  work  for  himself 
and  not  for  the  defendant.  Garbutt  v.  Watson  is  in  point."  After 
recalling  the  facts  in  that  case  he  proceeded:  "I  think,  there- 
fore, that  the  contract  in  this  case  was  only  a  contract  for  the 
sale  of  goods,  wares  and  merchandise  within  the  seventeenth 
section  of  the  statute,  and  that  there  ought  to  have  been  a  note 
or  memorandum  of  it  in  writing,  or  a  part  acceptance,  earnest 
or  part  payment."  Parke,  J.,  after  referring  to  Groves  v.  Buck 
and  Garbutt  v.  Watson,  said:  "The  true  question  in  such  cases 
is  as  to  whether  the  contract  be  substantially  a  contract  for 
the  sale  of  goods,  or  for  work  and  labor  and  materials  found. 
In  this  case  the  contract  was  substantially  a  sale  of  goods,  viz., 
timber  at  so  much  per  foot." 

§  301,  Whether  work  or  materials  is  the  essence  of 

the  contract,  as  test. —  In  1856  the  case  of  Clay  v.  Yates1 
came  before  the  court  of  exchequer.  It  appeared  there  that 
the  plaintiff  had  orally  agreed  to  print  for  defendant  a  treatise 
on  military  tactics,  furnishing  the  paper  and  printing  five  hun- 
dred copies,  at  a  certain  price  per  sheet.     The  book  was  to  con- 

1  (183fi)  1  Hurl.  &  Norm.  73. 

277 


§  301.]  LAW  OF  SALE.  [BOOK  I. 

tain  a  dedication  to  Sir  William  Napier.  When  the  plaintiff 
began  printing,  this  dedication  had  not  been  written,  but  was 
afterwards  supplied  and  put  in  type  before  plaintiff  had  notice 
of  it.  When  plaintiff  came  to  read  the  proof  of  the  dedication, 
he  found  it  to  contain  libelous  matter,  and  refused  to  print  it. 
The  defendant  would  not  pay  for  the  treatise  without  the  dedi- 
cation, and  the  action  was  brought  to  recover  for  printing  the 
treatise.  The  defense,  among  other  things,  was  that  the  con- 
tract was  for  the  sale  of  goods  within  the  seventeenth  section. 
Pollock,  C.  B.,  with  whom  the  otherjudges  concurred,  said: 
"  The  first  question  is,  whether  this  is  a  contract  for  the  sale  of 
goods  within  the  seventeenth  section  of  the  statute  of  frauds, 
and  I  am  of  opinion  that  it  is  properly  a  contract  for  work, 
labor  and  materials.  «  .  :  It  may  happen  that  part  of  the 
materials  is  found  by  the  person  for  whom  the  work  is  done, 
and  part  by  the  person  who  does  the  work;  for  instance,  the 
paper  for  printing  may  be  found  by  the  one  party,  while  the 
ink  is  found  by  the  printer.  In  such  cases  it  seems  to  me  that 
the  true  criterion  is,  whether  work  is  the  essence  of  the  con- 
tract, or  whether  it  is  the  materials  supplied.  My  impression 
is,  that  in  the  case  of  a  work  of  art,  whether  in  gold,  silver, 
marble  or  plaster,  where  the  application  of  skill  and  labor  is 
of  the  highest  description,  and  the  material  is  of  no  importance 
as  compared  with  the  labor,  the  price  may  be  recovered  as 
work,  labor  and  materials.  No  doubt  it  is  a  chattel  that  was 
bargained  for,  and,  if  delivered,  might  be  recovered  as  goods 
sold  and  delivered,  still  it  may  also  be  recovered  as  work,  labor 
and  materials.  Therefore  it  appears  to  me  that  this  is  prop- 
erly a  contract  for  work,  labor  and  materials.  I  am  inclined  to 
think  that  it  is  only  where  the  bargain  is  for  goods  thereafter 
to  be  made,  and  not  where  it  is  a  mixed  contract  for  work  and 
materials  to  be  found,  that  Lord  Tenterden's  Act  (9  Geo.  IV., 
ch.  14)  applies;  and  the  reason  why  no  cases  on  this  subject  are 
found  in  the  books  is  that,  before  Lord  Tenterden's  Act  passed, 
the  statute  of  frauds  did  not  apply  to  the  case  of  goods  not 
actually  made  or  fit  for  delivery.  I  think,  therefore,  that  the 
objection  does  not  arise." 

278 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.  [§  302. 

§  302.  The  present  English  test  —  Whether  the  sub- 
ject-matter is  a  chattel  to  be  afterwards  delivered. —  In  1861 

arose  the  case  of  Lee  v.  Griffin}  which  has  since  been  regarded 
as  declaratory  of  the  rule  in  English  courts,  and  which  has  had 
a  marked  influence  upon  judicial  thought  in  the  United  States. 
The  plaintiff,  a  dentist,  sued  to  recover  the  price  of  two  sets 
of  artificial  teeth  ordered  by  a  lady  who  had  died  before  they 
could  be  fitted.  The  defendant  was  her  executor.  The  dec- 
laration was  for  goods  bargained,  sold  and  delivered,  and  for 
work  and  labor  done  and  material  furnished.  The  defense 
was  that  the  contract  was  not  for  labor  and  material,  but  for 
the  sale  of  a  chattel,  and  therefore  void  under  the  seventeenth 
section  of  the  statute  of  frauds.  This  defense  was  sustained. 
Crompton,  J.,  said:2  "When  the  contract  is  such  that  a  chat- 
tel is  ultimately  to  be  delivered  by  the  plaintiff  to  the  defend- 
ant, when  it  has  been  sent,  then  the  cause  of  action  is  goods 
sold  and  delivered.  .  .  .  I  do  not  agree  with  the  proposi- 
tion that  whenever  skill  is  to  be  exercised  in  carrying  out  the 
contract  that  fact  makes  it  a  contract  for  work  and  labor,  and 
not  for  the  sale  of  a  chattel;  it  may  be  the  cause  of  action  is 
for  work  and  labor  when  the  materials  supplied  are  merely 
ancillary,  as  in  the  case  put  of  attorney  or  printer.  But  in  the 
present  case  the  goods  to  be  furnished,  viz.,  the  teeth,  are  the 
principal  subject-matter;  and  the  case  is  nearer  that  of  a  tailor, 
who  measures  for  a  garment  and  afterwards  supplies  the  article 
fitted."  Hill,  J.,  said:  "When  the  subject-matter  of  the  con- 
tract is  a  chattel  to  be  afterwards  delivered,  then  the  cause  of 
action  is  goods  sold  and  delivered,  and  the  seller  cannot  sue 
for  work  and  labor;"  and  Blackburn,  J.,  said:  "If  the  con- 
tract be  such  that  it  will  result  in  the  sale  of  a  chattel,  the 
proper  form  of  action,  if  the  employer  refuses  to  accept  the  ar- 
ticle when  made,  would  be  for  not  accepting.  But  if  the  work 
and  labor  be  bestowed  in  such  a  manner  as  that  the  result 

1(1861)  1  Best  &  Smith,  272,  30  L.     Journal  Reports,  which  differ  some- 
Jour.  R.  (Q.  B.)  252.  what  in  form,  but  not  in  substance, 

2  These  quotations  are  made  from     from  the  report  in  Best  &  Smith, 
the  reports  of  the  case  in  the  Law 

279 


§§  303-305.]  LAW   OF   SALE.  [book   I. 

would  not  be  anything  which  could  properly  be  said  to  be  the 
subject  of  sale,  then  an  action  for  work  and  labor  is  the  proper 
remedy.  ...  I  do  not  think  that  the  relative  value  of  the 
labor  and  of  the  materials  on  which  it  is  bestowed  can  in  any 
case  be  the  test  of  what  is  the  cause  of  action;  and  that  if 
Benvenuto  Cellini  had  contracted  to  execute  a  work  of  art  for 
another,  much  as  the  value  of  the  skill  might  exceed  that  of 
the  materials,  the  contract  would  have  been  nevertheless  for 
the  sale  of  a  chattel." 

§  303.  .  Mr.  Benjamin  expressed  surprise  "that  a  rule 

so  satisfactory  and  apparently  so  obvious "  should  not  have 
been  earlier  suggested,  and  concludes:  "From  the  very  defini- 
tion of  a  sale,  the  rule  would  seem  to  be  at  once  deducible 
that,  if  the  contract  is  intended  to  result  in  transferring  for  a 
price  from  A  to  B  a  chattel  in  which  A  had  no  previous  prop- 
erty, it  is  a  contract  for  the  sale  of  a  chattel,  and  unless  that 
be  the  case  there  can  be  no  sale." l 

§  304:.  American  cases  —  The  rule  in  New  York. —  In  New 

York,  on  the  other  hand,  entirely  opposite  conclusions  are 
reached,  following  the  rule  of  stare  decisis,  though  the  court 
admit  that  the  modern  English  doctrine  is  at  once  philosophical 
and  comprehensible.  In  Cooke  v.  Millard,2  the  defendants  ver- 
bally ordered  lumber  of  the  plaiutiffs,  to  be  taken  from  certain 
lots  designated  by  defendants  in  plaintiffs'  yard,  and  to  be  cut 
by  plaintiffs  into  sizes  required  by  defendants  and  placed  on 
plaintiffs'  dock.  Notice  was  then  to  be  given  to  defendants, 
who  were  thereupon  to  remove  it.  Plaintiffs  prepared  the 
lumber,  placed  it  upon  the  dock,  and  notified  defendants  as 
agreed,  but  before  it  was  removed  the  lumber  was  destroyed  by 
accidental  fire.     It  was  held  that  the  contract  was  one  of  sale. 

§  305. .  After  statino-  the  English  and  the  Massachusetts 

rule,  the  court,  speaking  through  the  late  Professor  T.  W. 
Dwight,  Commissioner,  said:  "The  New  York  rule  is  still  dif- 

1  Benjamin  on  Sales,  §  103.  2  65  N.  Y.  352,  22  Am.  R.  619. 

280 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.  [§   305. 

fercnt.  It  is  held  here  by  a  long  course  of  decisions,  that  an 
agreement  for  the  sale  of  any  commodity  not  in  existence  at 
the  time,  but  which  the  vendor  is  to  manufacture  or  put  in  a 
condition  to  be  delivered,  such  as  flour  from  wheat  not  yet 
ground,  or  nails  to  be  made  from  iron  belonging  to  the  manu- 
facturer, is  not  a  contract  of  sale.  The  New  York  rule  lays 
stress  on  the  word  sale.  There  must  be  a  sale  at  the  time  the 
contract  is  made.  The  latest  and  most  authoritative  expres- 
sion of  the  rule  is  found  in  a  recent  case  in  this  court,  Par- 
sons v.  Loueks.1  The  contrast  between  Parsons  v.  Zoucks,  in 
this  State,  on  the  one  hand,  and  Lee  v.  Griffin?  in  England,  on 
the  other,  is,  that  in  the  former  case  the  word  sale  refers  to 
the  time  of  entering  into  the  contract,  while  in  the  latter  ref- 
erence is  had  to  the  time  of  delivery  as  contemplated  by  the 
parties.  If  at  that  time  it  is  a  chattel,  it  is  enough,  according 
to  the  English  rule.  Other  cases  in  this  State  agreeing  with 
Parsons  v.  Zoucks  are  Crook-shank  v.  Burrell?  Sewall  v.  Fitch^ 
Robertson  v.  Vaughn,5  and  Parker  v.  Schenck*  These  cases  are 
based  on  certain  old  decisions  in  England,  such  as  Towers  v. 
Osborne?  and  Clayton  v.  Andrews?  which  have  been  wholly 
discarded  in  that  country. 

1 48  N.  Y.  17,  8  Am.  R  517.  mined,  though  upon  a  wrong  prin- 

2  1  B.  &  S.  272.  ciple,  as  has  since  been  held  both  by 

8 18  Johns.  (N.  Y.)  58,  9  Am.  Dec.  the  common  pleas  and  the  king's 

187.  bench." 

<  8  Cow.  (N.  Y.)  215.  In  Crookshank  v.  Burrell  (1820),  18 

5  5  Sandf.  (N.  Y.)  1.  Johns.  58,  9  Am.  Dec.  187,  the  same 

6  28  Barb.  38.  was  held  of  a  contract  to  make  and 

7  1  Strange,  506.  deliver  a  wagon  at  a  future  day. 

8  4  Burr.  2101.  In  Downs  v.  Ross  (1840),  23  Wend. 
The  leading  case  in  New  York  is  270,  the  contract  was  for  the  delivery 

Sewall  v.  Fitch  (1828).  8  Cow.  215.  of  wheat,  part  being  then  in  granary 

The  contract  was  for  a  quantity  of  and  part  unthrashed;  that  in  granary 

nails  not  then  on  hand,  but  which  was  to  be  cleaned  again  and  the  rest 

the  seller  said  "could  soon  be  knocked  thrashed.    Held,  to  be  a  contract  of 

off  "  and  sent  on  the  opening  of  navi-  sale  within  the  statute.    Bronson,  J., 

gation.     Held,  to  be  a  contract  for  said  of  the  cases  cited  to  the  contrary,  ' 

work  and  labor,  and  therefore  not  that,  "with  a  single  exception,  they 

within  the  statute.     Savage,   C.  J.,  all  relate  to  contracts  for  the  sale  of 

said:  "Towers  v.  Osborne  and  Clay-  a  thing  not  then  in  existence,  but 

ton  v.  Andrews  were  rightly  deter-  which  was  to  be  constructed  or  man- 

281 


305.] 


LAW    OF    SALE. 


[book 


"The  case  at  bar  does  not  fall  within  the  rule  in  Parsons  v. 
Loucks.  The  facts  of  that  case  were,  that  a  manufacturer 
agreed  to  make  for  the  other  party  to  the  contract  two  tons  of 
book  paper.     The  paper  was  not  in  existence,  and  so  far  as  it 

ufactured   by  the  vendor."    Citing    as  a  general  article  of  merchandise. 


the  cases  of  the  chariot  (Towers  v. 
Osborne),  the  oak  pins  (Groves  v. 
Buck),  the  wagon  (Crookshank  v. 
Burrell),  the  buggy  (Mixer  v.  How- 
arth.  21  Pick.,  Mass.,  205),  and  the 
nails  (Sewall  v.  Fitch).  The  excep- 
tion in  Clayton  v.  Andrews  he  pro- 
nounced overruled.  Cowen,  J.,  dis- 
sented. 

In  Seymour  v.  Davis  (1848),  2  Sandf. 
239,  a  contract  to  sell  and  deliver 
cider  in  future,  to  be  procured  from 
farmers  and  refined  by  the  seller, 
was  held  within  the  statute. 

In  Passaic  Mfg.  Co.  v.  Hoffman 
(1871),  3  Daly,  495,  is  a  review  of  this 
subject  by  Daly,  C.  J.,  in  which  he 
says :  "  It  may  be  stated  as  the  result 
of  several  well-considered  cases  that 
where  the  contract  is  for  an  article 
coming  under  the  general  denomina- 
tion of  goods,  wares  and  merchandise, 
and  it  is  made  with  one  who  sells 
that  kind  of  commodity  to  all  who 
traffic  in  it,  the  quantity  required  and 
the  price  being  agreed  upon,  it  is  a 
contract  of  sale,  and  that  it  in  no 
way  affects  the  character  of  the  con- 
tract, in  such  a  case,  whether  the 
manufacturer  and  vendor  has,  when 
the  order  is  given,  the  requisite 
quantity  on  hand  or  has  to  manu- 
facture it  afterward.  .  .  .  But  if 
what  is  clearly  contemplated  by  the 
agreement  is  the  skill,  labor,  care  or 
knowledge  of  the  one  who  fabricates 
the  article  or  commodity,  or  if  it 
would  not' have  been  produced  if  the 
order  had  not  been  given  for  it,  or  if, 
when  produced,  it  is  unfitted  for  sale 


being  adapted  for  use  only  by  the 
person  ordering  it,  then  the  contract 
is  one  for  work  and  labor  and  is  not 
within  the  statute."'  He  doubted 
Sewall  v.  Fitch,  and  pronounced 
Downs  v.  Ross  "still  more  doubtful  *' 
and  now  repudiated.  Robertson  v. 
Vaughn,  5  Sandf.  1,  and  Donovan  v. 
Willson,  26  Barb.  138,  were  also  de- 
clared to  be  discredited  since  Smith 
v.  New  York  Cent.  R.  Co.,  supra. 
This  was  followed  in  Flint  v.  Corbitt 
(1876),  6  Daly,  429,  where  the  defend- 
ant selected  some  unfinished  furni- 
ture and  ordered  it  covered  in  a  cer- 
tain material  to  be  supplied  by  the 
plaintiff.  This  was  held  to  be  a  sale 
within  the  statute. 

In  Kellogg  v.  Witherhead,  6  Thomp. 
&  C.  525,  the  same  was  held  of  a  con- 
tract to  buy  hams  to  be  smoked. 
"  The  plaintiffs  were  not  to  make  the 
hams;  they  were  to  smoke  them." 

In  Mead  v.  Case  (1860),  33  Barb.  202, 
the  agreement  was  for  a  monument, 
the  pieces  of  which  had  been  put  to- 
gether, but  which  the  plaintiff  was  to 
polish,  letter  and  finish.  Held,  not 
within  the  statute.  The  court  said: 
"It  is  very  plain,  I  think,  that  the 
monument  bargained  for  was  to  be 
afterwards  made  by  the  plaintiff's 
labor  and  skill,  and  had  no  existence 
as  such  at  the  time  of  the  bargain. 
.  .  .  It  is  precisely  this  labor  and 
skill  that  was  necessary  to  convert  it 
into  the  monument  which  the  plaint- 
iff agreed  to  furnish.  Without  this, 
it  was  no  monument  whatever,  cer- 
tainly not  to  the  defendant's  deceased 


282 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS. 


[§  305. 


appears,  not  even  the  rags,  'except  so  far  as  such  existence 
may  be  argued  from  the  fact  that  matter  is  indestructible.'  So 
in  St  wall  v.  Fitch,  sttpra,  the  nails  which  were  the  subject  of 
the  contract  were  not  then  wrought  out,  but  were  to  be  made 
and  delivered  at  a  future  day. 

"  Nothing  of  this  kind  is  found  in  the  present  case.     The 

relatives.  A  monument  is  something  with  certain  alterations  and  fixtures, 
designed  and  constructed  to  perpetu- 
ate the  memory  of  some  particular 
person  or  event.  Before  the  material 
was  polished  and  the  inscriptions 
engraved  upon  it,  it  was  a  mere 
structure  of  stone,  blank  and  mean- 
ingless. It  was  not  this  stone,  in  this 
condition,  that  the  defendant  bar- 
gained for;  if  it  had  been,  the  con- 
tract would  most  likely  have  been 
within  the  statute.  What  he  bar- 
gained for  was  the  necessary  labor 
and  skill  to  convert  this  stune  into 
an  enduring  memorial  of  the  dead. 
This  labor  and  skill  did  not  convert 
the  stone  into  any  article  of  general 
merchandise,  but  into  the  particular 
thing  bargained  for.  For  any  other 
purpose  the  valuable  material  had 
been  wholly  destroyed.  It  was  then 
entirely  unfitted  for  a  sale  to  any 
other  person;  or  for  any  other  pur- 
pose." Daly,  C.  J.,  in  the  case  of 
Passaic  Mfg.  Co.  v.  Hoffman,  pro- 
nounces this  reasoning  conclusive: 
on  the  other  hand,  Dwight,  C,  in 
Cooke  v.  Millard,  supra,  pronounces 
it  a  "border  case."  Smith,  J.,  dis- 
sented. 

In  Bates  v.  Coster  (1874),  1  Hun, 
400,  an  agreement  to  buy  a  stallion 
colt,  to  be  operated  upon  and  kept  by 
the  plaintiff  till  he  got  well,  was 
held  within  the  statute.  The  court 
doubted  Mead  v.  Case. 

In  Fitzsimmons  v.  Woodruff,  1 
Thorn  p.  &  C.  3,  a  contract  for  a  mar- 
ble mantel,  to  be  put  up  in  a  house 


was  held  within  the  statute. 

In  Donnell  v.  Hearn,  IT  N.  Y.  Wkly. 
Dig.  4G3.  a  contract  to  manufacture 
certain  lamps  of  a  peculiar  and  un- 
usual pattern  was  held  not  within 
the  statute.  So  in  Pierce  v.  Bourton, 
17  N.  Y.  Wkly.  Dig.  444,  of  a  contract 
to  imitate  certain  woven  goods  in 
felt,  of  a  kind  not  usually  dealt  in  by 
the  plaintiff. 

In  Smith  v.  N.  Y.  Cent.  R.  Co.,  4 
Keyes.  180,  it  was  held  that  a  con- 
tract for  the  delivery  of  wood  to  be 
cut  from  standing  trees  is  within  the 
statute.  Citing  Downs  v.  Ross,  and 
( rarbutt  v.  Watson,  and  Smith  v.  Sur- 
man,  9  B.  &  C.  561,  a  precisely  similar 
case.  The  court,  by  Woodruff,  J., 
said:  "There  would  seem  no  very 
sensible  reason  for  holding,  with 
reference  to  two  verbal  contracts 
with  wagon  makers  for  the  purchase 
and  delivery  of  twenty  wagons  on  a 
future  day  named,  that  one  is  void 
because  the  wagon  maker  has  the 
wagons  on  hand,  and  the  other  is 
valid  because  the  other  wagon  maker 
must  manufacture  them  in  order  to 
their  delivery  at  the  time  appointed. 
Without  however  disregarding  the 
cases  which  hold  that  where  the  sub- 
stance of  the  contract  is  work  and 
labor  to  be  done  in  converting  ma- 
terials into  a  new  and  totally  different 
article,  it  is  not  within  the  statute, 
we  may  say  that  there  is  no  just  no- 
tion of  manufacture  involved  in  an 
agreement  to  deliver  a  specified  nurn- 


2$:i 


§  305.]  LAW    OF    SALE.  [iiOOK    I. 

lumber,  with  the  possible  exception  of  the  clapboards,  was  all 
in  existence  when  the  contract  was  made.  It  only  needed  to 
be  prepared  for  the  purchaser  —  dressed  and  put  in  a  condition 
to  fill  his  order.  The  court,  accordingly,  is  not  hampered  in 
the  disposition  of  this  cause  by  authority,  but  may  proceed 
upon  principle. 

"  Were  this  subject  now  open  to  full  discussion  upon  princi- 
ple, no  more  convenient  and  easily  understood  rule  could  be 
adopted  than  that  enunciated  in  Lee  v.  Griffin.  It  is  at  once 
so  philosophical,  and  so  readily  comprehensible,  that  it  is  a 
matter  of  surprise  that  it  should  have  been  first  announced  at 
so  late  a  stage  in  the  discussion  of  the  statute.  It  is  too  late 
to  adopt  it  in  full  in  this  State.  So  far  as  authoritative  decis- 
ions have  gone,  they  must  be  respected  even  at  the  expense  of 
sound  principle.  The  court,  however,  in  view  of  the  present 
state  of  the  law,  should  plant  itself,  so  far  as  it  is  not  precluded 
from  doing  so  by  authority,  upon  some  clearly  intelligible 
ground,  and  introduce  no  more  nice  and  perplexing  distinc- 
tions.    I  think  that  the  true  rule  to  be  applied  in  this  State  is, 

ber  of  cords  of  firewood;  no  change  In  Higgins  v.  Murray,  73  N.  Y.  252. 
in  the  thing  sold  and  to  be  delivered  a  contract  to  make  circus  tents,  ma- 
is  contemplated.  The  circumstance  terials  to  be  furnished  by  the  plaint- 
that  it  stands  in  the  woods  at  the  iff,  was  held  not  within  the  statute. 
time  involves  nothing  more  than  a  In  Hinds  v.  Kellogg,  13  N.  Y.  Supp. 
necessity  to  cut  it,  that  it  may  be  922,  133  N.  Y.  536,  30  N.  E.  R.  1148,  a 
delivered.  In  this  respect  it  is  not  contract  to  furnish  circulars,  to  be 
different  from  a  purchase  and  agree-  used  exclusively  in  the  business  of 
ment  to  deliver  wood  of  a  prescribed  the  person  ordering  them,  was  held 
length,  split  into  pieces  of  convenient  not  within  the  statute.  To  the  same 
size,  the  parties  knowing  and  intend-  point  see  Pelletreau  v.  United  States 
ing  that  delivery  shall  be  had  of  wood  Electric  Light  Co.,  34  N.  Y.  Supp.  125, 
already  cut,  but  of  a  greater  length  13  Misc.  237. 

and  not  split  at  all."   But  in  Killmore  In  Warren  Chemical  Co.  v.  Hol- 

v.  Howlett,   48  N.  Y  569,  while  a  brook,  118  N.  Y  586,  23  N.  E.  R.  908, 

similar  contract  was  held  not  to  be  16  Am.  St.  R.  788,  a  contract  for  the 

for  the  sale  of  an  interest  in  lands,  sale  and  delivery  of  patent  roofing, 

the  court  said  it  was  "rather  a  con-  to  be  thereafter  manufactured  and 

tract   by  the   defendant  to  bestow  delivered,  was  held  not  within  the 

work  and  labor  upon  his  own  ma-  statute,  relying  on  Parsons  v.  Loucks, 

terial,  and  deliver  it  in  its  improved  48  N.  Y  17,  8  Am.  R.  517. 
condition  to  the  plaintiff." 

284 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF   FRAUDS.       [§§  306,  307. 

that  when  the  chattel  is  in  existence,  so  as  not  to  be  governed 
by  Parsons  v.  ZoueJcs,  supra,  the  contract  should  be  deemed  to 
be  one  of  sale,  even  though  it  may  have  ordered  from  a  seller 
who  is  to  do  some  work  upon  it  to  adapt  it  to  the  uses  of  the 
purchaser.  Such  a  rule  makes  but  a  single  distinction,  and 
that  is  between  existing  and  non-existing  chattels.  There  will 
still  be  border  cases  where  it  will  be  difficult  to  draw  the  line, 
and  to  discover  whether  the  chattels  are  in  existence  or  not. 
The  mass  of  the  cases  will,  however,  readily  be  classified.  If, 
on  further  discussion,  the  rule  in  Lee  v.  Griffin  should  be  found 
most  desirable  as  applicable  to  both  kinds  of  transactions,  a 
proper  case  will  be  presented  for  the  consideration  of  the  leg- 
islature." 

§  306.  The  Massachusetts  rule. —  In  Massachusetts  a 

somewhat  middle  ground  is  taken,  well  illustrated  in  the  case 
of  Goddard  v.  Binney.1  There  the  defendant  had  orally  or- 
dered of  the  plaintiff,  a  manufacturer,  a  buggy  of  a  certain 
kind,  and  gave  full  instructions  as  to  its  construction  and  finish. 
The  plaintiff  made  the  buggy  in  all  respects  as  ordered,  and 
when  it  was  completed  he  notified  the  defendant  and  sent  him 
a  bill  for  the  price.  Plaintiff  sent  again  for  a  check  for  the 
amount,  and  defendant  said  he  would  pay  it  soon,  and  would 
see  the  plaintiff.  Plaintiff  sent  a  third  time,  and  defendant  re- 
plied that  he  would  "  come  and  see  him  right  away."  While 
matters  were  in  this  condition,  the  buggy  was  destroyed  by 
accidental  fire.  Plaintiff  finally  brought  this  action  for  the 
price.  The  defense  was  the  statute  of  frauds,  but  the  contract 
was  held  not  to  be  within  the  statute. 

§  307.  .  In  pointing  out  the  distinction  which  prevails 

in  Massachusetts  between  the  English  rule  on  the  one  hand, 
and  the  New  York  rule  on  the  other,  Ames,  J.,  said : 

"  According  to  a  long  course  of  decisions  in  Xew  York  and 
in  some  other  States  of  the  Union,  an  agreement  for  the  sale 
of  any  commodity  not  in  existence  at  the  time,  but  which  the 

1  (1874)  115  Mass.  450,  15  Am.  R,  112. 

285 


§  307.]  LAW    OF    SALE.  [COOK    I. 

vendor  is  to  manufacture  or  put  in  a  condition  to  be  delivered 
(such  as  flour  from  wheat  not  yet  ground,  or  nails  to  be  made 
from  iron  in  the  vendor's  bands),  is  not  a  contract  of  sale  within 
the  meaning  of  the  statute.1  In  England,  on  the  other  hand, 
the  tendency  of  the  recent  decisions  is  to  treat  all  contracts  of 
such  a  kind  intended  to  result  in  a  sale,  as  substantially  con- 
tracts for  the  sale  of  chattels;  and  the  decision  in  Lee  v.  Griffin 2 
goes  so  far  as  to  hold  that  a  contract  to  make  and  fit  a  set  of 
artificial  teeth  for  a  patient  is  essentially  a  contract  for  the  sale 
of  goods,  and  therefore  is  subject  to  the  provisions  of  the 
statute.3 

"In  this  Commonwealth,  a  rule  avoiding  both  of  these  ex- 
tremes was  established  in  Mixer  v.  Uowarthf  and  has  been  rec- 
ognized and  affirmed  in  repeated  decisions  of  more  recent  date. 
The  effect  of  these  decisions  we  understand  to  be  this,  namely, 
that  a  contract  for  the  sale  of  articles  then  existing,  or  such  as 
the  vendor  in  the  ordinary  course  of  his  business  manufactures 
or  procures  for  the  general  market,  whether  on  hand  at  the 
time  or  not,  is  a  contract  for  the  sale  of  goods,  to  which  the 
statute  applies.  But  on  the  other  hand,  if  the  goods  are  to  be 
manufactured  especially  for  the  purchaser,  and  upon  his  special 
order,  and  not  for  the  general  market,  the  case  is  not  within 
the  statute.5  '  The  distinction,'  says  Chief  Justice  Shaw  in  Lamb 
v.  Crafts?  '  we  believe  is  now  well  understood.  When  a  per- 
son stipulates  for  the  future  sale  of  articles  which  he  is  habitu- 
ally making,  and  which  at  the  time  are  not  made  or  finished, 
it  is  essentially  a  contract  of  sale,  and  not  a  contract  for  labor; 
otherwise,  when  the  article  is  made  pursuant  to  the  agreement.' 
In  Gardner  v.  Joy,1  a  contract  to  buy  a  certain  number  of  boxes 

i  Citing  Crookshank  v.  Burrell.  18  B.  &  Aid.  321:  Baldey  v.  Parker,  2 

Johns.   (N.   Y.)  58,  9  Am.  Dec.  187;  B.  &  C.  37;  Atkinson  v.  Bell,  8  B.  & 

Sewall  v.  Fitch,  8  Cow.  (N.  Y.)  215;  C.  277. 

Eobertson  v.  Vaughn,  5  Sandf.  (N.  Y.)        421  Pick.  (Mass.)  205,  32  Am.  Dec. 

1:  Downs  v.  Ross,  23  Wend.  (N.  Y.)  256. 

270;  Eichelberger  v.  McCauley,  5  H.        8  Citing  Spencer  v.  Cone,  1  Mete. 

&  J.  (Md.)  213,  9  Am.  Dec.  514.  (Mass.)  283. 

2 1  B.  &  S.  272.  6  12  Mete.  (Mass.)  353. 

3  Referring  to  Maberley  v.  Shep-        "•  9  Mete.  (Mass.)  177. 
pard,  10  Bing.  99;  Howe  v.  Palmer,  3 

286 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS. 


L§  307. 


of  candles  at  a  fixed  rate  per  pound,  which  the  vendor  said  he 
would  manufacture  and  deliver  in  about  three  months,  was 
held  to  be  a  contract  of  sale  and  within  the  statute.  To  the 
same  general  effect  are  Waterman  v.  Meigs l  and  Clark  v.  Nich- 
ols}   It  is  true  that  in  '  the  infinitely  various  shades  of  differ- 


UCush.  (Mass.)  497. 

2 107  Mass.  547. 

The  leading  case  in  Massachusetts 
is  Mixer  v.  Howarth  (1838),  21  Pick. 
205,  32  Am.  Dec.  256,  where  the  con- 
tract was  for  a  carriage  in  the  seller's 
possession,  unfinished,  and  which  he 
was  to  finish  and  line  with  a  certain 
lining  selected  by  the  buyer.  This 
was  held  not  within  the  statute. 
Shaw,  C.  J.,  said:  "Where  the  con- 
tract is  a  contract  of  sale,  either  of 
an  article  then  existing  or  of  articles 
which  the  vendor  usually  has  for 
sale  in  the  course  of  his  business,  the 
statute  applies  to  the  contract,  as 
well  where  it  is  to  be  executed  at  a 
future  time  as  where  it  is  to  be  exe- 
cuted immediately.  But  where  it  is 
an  agreement  with  a  workman  to 
put  materials  together  and  construct 
an  article  for  the  employer,  whether 
at  an  agreed  price  or  not,  though  in 
common  parlance  it  may  be  called  a 
purchase  or  sale  of  an  article  to  be 
completed  infuturo,  it  is  not  a  sale 
until  an  actual  or  constructive  de- 
livery or  acceptance,  and  the  remedy 
for  not  accepting  is  on  the  agree- 
ment." Citing  Sewall  v.  Fitch,  8 
Cow.  (N.  Y.)  215;  Cooper  v.  Elston,  7 
T.  R.  14. 

In  Lamb  v.  Crafts  (1847),  12  Mete. 
353,  where  one  whose  business  was 
collecting  raw  tallow  and  preparing 
it  for  market  agreed  to  "  furnish  " 
another  in  the  future  with  a  certain 
quantity  of  prepared  tallow,  held, 
within  the  statute.  Shaw,  C  J.,  said: 
-Where  a  person  stipulates  for   a 

28' 


future  sale  of  articles  which  he  is 
habitually  making,  and  which,  at 
the  time,  are  not  made  or  finished, 
it  is  essentially  a  contract  of  sale, 
and  not  a  contract  of  labor;  other- 
wise when  the  article  is  made  pursu- 
ant to  the  agreement.*' 

In  Clark  v.  Nichols,  107  Mass.  547, 
the  contract  was  to  deliver  ash  build- 
ing stuff  and  plank,  the  logs  to  be 
sawed  into  plank  at  the  buyer's  di- 
rection.    Held,  within  the  statute. 

In  Gardner  v.  Joy  (1845).  9  Mete. 
177,  A  asked  B  what  he  would  take 
for  candles;  B  said  he  would  take 
twenty-one  cents  per  pound;  A  said 
he  would  take  one  hundred  boxes: 
B  said  they  were  not  made,  but  he 
would  make  and  deliver  them  in  the 
course  of  the  summer.  Held,  within 
the  statute.  Shaw,  C.  J.,  said:  "If 
it  is  a  contract  to  sell  and  deliver 
goods  whether  they  are  then  com- 
pleted or  not,  it  is  within  the  stat- 
ute. But  if  it  is  a  contract  to  make 
and  deliver  an  article  or  quantity  of 
goods,  it  is  not  within  the  statute." 
So,  in  Waterman  v.  Meigs  (1849).  4 
Cush.  497,  an  agreement  for  the  de- 
livery of  a  quantity  of  planks,  for 
ship-lmilding,  at  a  future  time,  was 
held  within  the  statute. 

In  Smalley  v.  Hamblin  (1898),  170 
Mass.  380,  49  N.  E.  E.  626.  it  is  held 
that  where  there  is  an  understand- 
ing that  the  articles  are  not  to  be 
manufactured  by  the  vendor,  but  are 
to  be  procured  by  him  of  some  other 
person  who  manufactures  and  sells 
them,  and  are  to  be  delivered  by  the 


§§  308,  309.]  LAW  OF  SALE.  [book  I. 

ent  contracts,'  there  is  some  practical  difficulty  in  disposing  of 
the  questions  that  arise  under  that  section  of  the  statute.  But 
we  see  no  ground  for  holding  that  there  is  any  uncertainty  in 
the  rule  itself.  On  the  contrary,  its  correctness  and  justice 
are  clearly  implied  or  expressly  affirmed  in  all  of  our  decisions 
upon  the  subject-matter.  It  is  proper  to  say  also  that  the 
present  case  is  a  much  stronger  one  than  Mixer  v.  Ilowarth. 
In  this  case  the  carriage  was  not  only  built  for  the  defendant, 
but  in  conformity  in  some  respects  with  his  directions,  and  at 
his  request  was  marked  with  his  initials.  It  was  neither  in- 
tended nor  adapted  for  the  general  market.  As  we  are  by  no 
means  prepared  to  overrule  the  decision  in  that  case,  we  must 
therefore  hold  that  the  statute  of  frauds  does  not  apply  to  the 
contract  which  the  plaintiff  is  seeking  to  enforce  in  this  action." 

§  308. The  rule  in  Vermont. —  In  a  recent  case1  in 

Vermont  the  court  had  before  it  a  contract  for  the  construction 
of  a  monument  to  be  erected  for  the  State  of  Minnesota  upon 
the  battle-field  at  Gettysburg.  The  court  held  the  contract  to 
be  not  within  the  statute,  and  declared  its  preference  for  the 
Massachusetts  rule,  saying:  " Under  this  rule  the  test  is,  not 
the  non-existence  of  the  article  at  the  time  of  the  bargain,  as 
in  New  York,  nor  whether  the  contract  will  result  in  the  sale 
of  a  chattel,  as  in  England,  but  whether  the  goods  are  such  as 
the  vendor,  in  the  ordinary  course  of  his  business,  manufact- 
ures or  procures  for  the  general  market,  or  whether  they  are 
manufactured  especially  for  the  vendee,  and  on  his  special 
order,  and  not  for  the  general  market,  and  for  which  they  are 
neither  intended  nor  adapted." 

§  309.  The  rule  in  Oregon. —  So  in  a  late  case2  in  Ore- 
gon an  oral  contract  to  manufacture  and  furnish  iron  work  for 

vendor  to  the  purchaser  for  an  agreed  land  of  the  vendor,  who  was  to  tear 

price  as  completed  articles  of  mer-  it  down  and  deliver  it  in  the  condition 

chandise,  the  transaction  is  a  sale  of  timber,— the   contract  was  held 

within  the  statute  of  frauds.  not    within    the  statute.     Scales  v. 

i  Forsyth  v.  Mann  (1896).  68  Vt.  116,  Wiley,  68  Vt.  39,  33  Atl.  R.  771. 

34Atl.  R.  481,32L.RA.788.  The  same  2Heintz    v.    Burkhard    (1896),    29 

conclusion    is    reached   where    one  Oreg.  55,  43  Pac.  R  866,  31  L.  R  A. 

bought  a   building  situated  on  the  508. 

288 


Cn.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  310,311. 

a  brick  building  according  to  special  designs  and  measurements 
and  suitable  for  use  on  that  particular  building  was  held  not 
to  be  a  contract  of  sale  within  the  statute.  The  court  declared 
the  Massachusetts  rule  to  be  the  one  most  widely  adopted  in 
the  United  States,  but  found  it  unnecessary  to  express  a  pref- 
erence as  between  it  and  the  New  York  rule,  as  the  case  would 
be  excluded  from  the  operation  of  the  statute  under  either 
rule,—  under  the  New  York  rule  as  being  for  an  article  not  in 
existence  when  the  contract  was  made,  and  under  the  Massa- 
chusetts rule  as  an  article  made  upon  special  design  and  not 
such  as  the  manufacturer  usually  produced.  Lee  v.  Griffin 
was  repudiated. 

g  310.  The  rule  in  Washington  and  Michigan.— Like 

results,  for  like  reasons,  were  reached  in  Washington.1  And 
in  Michigan,  a  contract  for  the  painting  of  a  portrait,  not  or- 
dered as  a  chattel  having  any  marketable  value,  was  held  not 
to  be  a  contract  of  sale  within  the  statute.2 

§  311.  The  rule  in  Maine  and  New  Hampshire.— Still 

a  different  rule  has  been  laid  down  in  Maine  and  New  Hamp- 
shire, based  upon  the  element  of  the  delectus persona  supposed 
to  exist  in  the  contract  of  the  parties.  Thus  in  the  leading 
case  in  Maine,3  Shepley,  J.,  laid  down  the  rule  as  follows:  "  If 

i  Fox  v.  Utter  (1893),  6  Wash.  299,  mould,"  is  not  for  a  sale  (Abbott 

33  Pac.  R  354  (a  monument  case);  v.  Gilchrist,  38  Me.  260);  nor  is  a  con- 

Puget  Sound  Machinery  Co.  v.  Rigby  tract  to   manufacture   barrel-staves 

(1895),  13  Wash.  264,  43  Pac.  R.  39.  out  of  a  particular  lot  of  timber  at 

2  Turner  v.  Mason  (1887),  65  Mich,  so  much  per  thousand.  Crockett  v. 
662,  32  N.  W.  R.  846.  Scribner,  64  Me.  447.     On  the  other 

3  Hight  v.  Ripley,  19  Me.  137,  where  hand,  a  contract  to  take  "  all  the 
a  contract  by  defendants  "  to  furnish  wood  the  plaintiff  would  put  on  the 
as  soon  as  practicable  from  one  thou-  line  of  the  road  that  season  "  was 
sand  to  one  thousand  two  hundred  held  a  contract  of  sale,  as  no  ele- 
malleable  iron  hoe-shanks,  agreeable  ment  of  personality  or  particular 
to  patterns  left  with  them  on  terms,"  method  of  manufacture  entered  into 
etc.,  was  held  not  a  contract  of  sale.  it.  Edwards  v.  Grand  Trunk  Ry.  Co., 

So  a  contract  "to  procure  and  de-    48  Ma  379;  s.  C,  54  Me.  105.     And  a 

liver,  at  a  certain  time  and  place,     contract  "  for  the  delivery,  and  not 

one-half  of  a  frame  for  a  vessel,  to    for  the  manufacture  and  delivery, 

be  hewn  and  fashioned  according  to    of  blocks  which  may  have  been  man- 

19  2S9 


§  312.]  LAW    OF    SALE.  [BOOK    I. 

the  contract  be  one  of  sale  it  cannot  be  material  whether  the 
article  be  then  in  the  possession  of  the  seller  or  whether  he 
afterward  procure  or  make  it.  A  contract  for  the  manufacture 
of  an  article  differs  from  a  contract  of  sale  in  this:  The  person 
ordering  the  article  to  be  made  is  under  no  obligation  to  re- 
ceive  as  good  or  even  a  better  one  of  the  like  kind  purchased 
from  another  and  not  made  for  him.  It  is  the  peculiar  skill 
and  labor  of  the  other  party  combined  with  the  materials  for 
which  he  contracted  and  to  which  he  is  entitled.  Hence  it 
has  been  said  that  if  the  article  exist  at  the  time  in  the  condi- 
tion in  which  it  is  to  be  delivered,  it  should  be  regarded  as  a 
contract  for  sale." 

§  312.  .  In  an  early  Xew  Hampshire  case,1  Bellows,  J., 

says:  "If  a  person  contract  to  manufacture  and  deliver  at  a 
future  time  certain  goods,  at  prices  then  fixed  or  at  reasonable 
prices,  the  essence  of  the  agreement  being  that  he  will  bestow 
his  own  labor  and  skill  upon  the  manufacture,  it  is  held  not  to 
be  within  the  statute.  If,  on  the  other  hand,  the  bargain  be 
to  deliver  goods  of  a  certain  description  at  a  future  time  and 
they  are  not  existing  at  the  time  of  the  contract,  but  the  seller 
does  not  stipulate  to  manufacture  them  himself  or  procure  a 
particular  person  to  do  so,  the  contract  is  within  the  statute. 
The  distinction  is  that  in  the  one  case  the  party  stipulates  that 
he  will  himself  manufacture  the  article,  and  the  buyer  has  the 
right  to  require  him  to  do  it,  and  cannot  be  compelled  to  take 
one  as  good,  or  even  better,  if  made  by  another;  while,  in  the 
other  case,  the  seller  only  agrees  to  sell  and  deliver  the  article, 

ufactured  at  the  time,"  is  a  contract  their  non-delivery  it  was  held  that 
of  sale  and  within  the  statute.  Fick-  it  was  a  question  for  the  jury  to  de- 
ett  v.  Swift,  41  Me.  65,  66  Arn.  Dec.  termine  whether  under  the  contract 
214.  the  defendant  was  bound  to  raise 
1  Pitkin  v.  Noyes,  48  N.  H.  294,  2  the  potatoes  himself  —  in  which  case 
Am.  R.  218.  In  this  case  plaintiff  it  would  be  a  contract  for  work, 
made  a  parol  contract  with  defend-  labor  and  materials,  and  not  within 
ant,  whereby  the  latter  was  to  raise  the  statute  —  or  whether  he  might 
three  acres  of  potatoes  and  deliver  procure  them  by  purchase  or  other- 
them  to  plaintiff  at  a  stipulated  wise  —  which  would  render  it  a  con- 
price  per  bushel    In  an  action  for  tract  of  sale  and  therefore  void. 

290 


OH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  313,  314-. 

and  is  under  no  obligation  to  make  it  himself  but  may  purchase 
it  of  another." 

§  313.  .  In  a  later  case,1  in  the  same  State,  however, 

the  court  applied  the  English  rule,  Foster,  J.,  saying:  "Where 
the  contract  is  for  a  chattel  to  be  made  and  delivered,  it  clearly 
is  a  contract  for  the  sale  of  goods.  In  such  case  the  party  sup- 
plying the  chattel  cannot  recover  for  his  labor  in  making  it. 
If  the  contract  be  such  that  when  carried  out  it  would  result 
in  the  sale  of  a  chattel,  the  party  cannot  sue  for  labor;  but  if 
the  result  of  the  contract  is  that  the  party  has  done  work  and 
labor  which  end  in  nothing  that  can  become  the  subject  of  a 
sale,  the  party  cannot  sue  for  goods  sold  and  delivered.2  .  .  , 
Where  the  contracting  parties  contemplate  a  sale  of  goods,  al- 
though the  snbject-matter  at  the  time  of  making  the  contract 
does  not  exist  in  goods,  but  is  to  be  converted  into  that  state  by 
the  vendor's  bestowing  labor  on  his  own  raw  materials,  that 
is  a  case  of  a  contract  of  sale  within  the  statute  of  frauds."3 

314.   The  rule  in  Wisconsin  and  California. —  In 

Wisconsin  4  the  court  approves  the  early  English  cases  prior  to 
Lee  v.  Griffin,)  which  they  deem  to  have  been  controlled  by 
Lord  Tenterden's  Act.  and  lavs  down  the  rule  as  follows:  "That 
while  an  executory  contract  for  the  sale  of  an  article  for  the 

1  Prescott  v.  Locke,  51  N.  II.  94,  12  materials,  and  not  for  the  def end- 
Am.  R.  55.  Here  it  was  held  that  ant-.'*  Citing  Smith  v.  Surman,  9  B. 
a  contract  by  defendant  to  buy  of  &  C.  561. 

plaintiff  all  the    spokes  he  should        2  Citing  Lee  v.  Griffin,  1  B.  &  S. 

manufacture  at  his  mill,  not  more  272. 

than  one  hundred  thousand   in  all,         3  Citing  Garbutt  v.  Watson.  5  B.  & 

was  a  contract  of  sale.     "The  true  Aid.  613;  Smith  v. Surman,  supra. 
(•.instruction  in  this  case."  said  the        4Meincke  v.  Falk.  55  Wis.  4','7.  13 

court,  "is  that  the  contract  was  for  X.  W.   R.  545.  42  Am.  R.  722.     This 

the  future  sale  of  the  spokes  when  case  contains  a  very  exhaustive  re- 

they  should  be  in  a  state  fit  for  de-  view  of  the    authorities.     See   also 

livery.    The  vendor,"  so  long  as  he  Hardell  v.  McClure,  2  Pin.  (Wis 

was  sawing  the  timber  and  doing  s.  c.  1  Chand.  (Wis.)  271;    Central 

any  other  work  preparing  it  for  de-  Lith.  &  Eng.  Co.  v.  Moore,  75  Wis. 

livery  in   the  form  of  spokes,   was  170,  6  L.  R.  A.  788;  Goodland  v.  Le 

doing  work  for  himself  upon  his  own  Clair,  7V  Wis.  170.  47  N.  W.  R.  268. 

291 


§§  315,  316.]  LA.W  OF  SALE.  [BOOK  I- 

price  of  fifty  dollars  or  more  may  be  within  the  statute,  not- 
withstanding such  article  does  not  at  the  time  exist  in  solidoy 
yet  where  such  contract  is  to  furnish  materials  and  manufact- 
ure the  article  according  to  the  specifications  furnished  or  a 
model  selected,  and  when  without  the  special  contract  the 
thing  would  never  have  been  manufactured  in  the  particular 
manner,  shape  or  condition  it  was,  then  the  contract  is  essen- 
tially for  special  skill,  labor  or  workmanship,  and  is  not  within 
the  statute." 

§  315.  .  In  California  the  court  adopts  the  rule  as  laid 

down  in  "Wisconsin,  and  in  almost  the  same  language.1 

§  316.  The  rule  in  New  Jersey. —  In  New  Jersey2  the 

rules  are  said  to  be,  "First.  That  a  contract  for  the  sale  of  goods 
which  is  purely  executory  is  as  much  within  the  statute  as  is- 
one  to  be  executed  in prcesenti.  Second.  That  where  a  contract 
is  made  for  an  article  not  existing  at  the  time  in  solido,  and 
when  such  article  is  to  be  made  according  to  order,  and  as  a, 
thing  distinguished  from  the  general  business  of  the  maker, 
then  such  contract  is  in  substance  and  effect  not  for  a  sale, 
but  for  work  and  materials." 

1  Flynn  v.  Dougherty,  91  Cal.  669,  alterations  were  made  in  them  by 
14  L.  R.  A.  230,  27  Pac.  R.  1080.  the  plaintiffs  at  defendants'  request, 

2  Finney  v.  Apgar,  31  N.  J.  L.  266,  and  while  they  were  still  on  plaint- 
which  was  a  contract  for  the  sale  of  iffs'  premises,  a  painter,  employed  by 
a  quantity  of  spokes  which  the  de-  the  defendants,  painted  their  name 
fendant  was  to  "get  out."  Held,  and  business  on  the  trucks.  De- 
within  the  statute.  Pawelski  v.  Har-  fendants  refused  to  pay  for  the» 
greaves,  47  N.  J.  L.  334,  54  Am.  R.  162.  trucks  when  the  money  was  de- 
In  this  case  the  defendants  went  to  manded  before  they  were  taken 
the  shop  of  plaintiffs,  who  were  from  the  plaintiffs'  premises.  In  an 
wagon  and  carriage  makers,  to  pur-  action  for  damages,  held,  that  the 
chase  brewery  trucks.  Plaintiffs,  contract  was  within  the  statute, 
not  having  any  on  hand,  ordered  The  whole  subject  is  again  elabo- 
them  with  defendants'  assent  from  rately  considered  in  Mechanical 
makers  in  another  town,  and,  when  Boiler  Cleaner  Co.  v.  Kellner  (1899), 
the  trucks  arrived,  plaintiffs  ac-  62  N.  J.  L.  544,  43  AtL  R.  599. 
cepted    and  paid   for  them.     Some 

292 


«H.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  317-319. 

§  317.  The  rule  in  New  Mexico.— In  a  New  Mexico 

.case  *  the  court  said  that  "  the  result  of  the  doctrine  declared 
b}^  the  greater  part  of  the  decisions  seems  to  be  that  when  the 
work  and  labor  is  to  be  performed  upon  materials  belonging  to 
the  vendor,  and  the  chattel,  when  completed,  is  to  be  delivered 
to  the  vendee,  or  when,  the  materials  being  the  property  of  the 
vendor,  the  goods  ordered  are  of  the  kind  usually  manufactured 
by  him,  and  which  he  generally  sold  in  the  ordinary  course  of 
business,  the  contract  is  within  the  statute. 

"  But  when  the  materials  belong  to  the  person  to  whom  the 
goods  are  to  be  delivered  when  completed,  and  the  other  party 
is  simply  to  expend  his  skill  and  labor  upon  them  for  the  use 
of  the  owner,  or  where  the  goods  to  be  made  are  of  a  special 
kind  which  the  maker  could  not  sell,  unless  the  person  order- 
ing them  should  take  them,  the  contract  is  without  the  stat- 
ute." 

§  318.  The  rule  in  Colorado.— In  a  late  case2  in  Colo- 
rado the  court  held  a  contract  for  the  purchase  and  sale  of  a 
number  of  hemlock  ties  within  the  statute,  although  they  were 
to  be  prepared  from  standing  timber.  The  court  says:  "  This 
was  not  essential  to  the  contract;  the  goods  might  just  as  well, 
conformably  with  the  contract,  have  been  obtained  by  pur- 
chase ; "  and  asserts  the  rule  that  the  true  criterion  is  the  con- 
dition of  the  goods  at  the  date  fixed  for  delivery. 

|  319.  The  rule  in  Minnesota.—  In  a  recent  Minnesota 

case,3  where  the  contract  was  for  the  furnishing  of  certain 
glass  work  in  the  reconstruction  of  a  building,  and  the  evidence 
showed  that  some  labor  would  be  necessary  upon  the  materials, 
as  cutting  and  beveling  the  plate-glass,  setting  it  in  frames  and 
cutting  the  other  glass  into  sheets  of  the  proper  size,  before  the 
goods  would  be  ready  for  use  about  the  building,  the  court 
held  that  the  contract  was  not  one  for  the  sale  of  goods  within 

i  Orman  v.  Hagar,  3  N.  Mex.  568,  9        3  Brown  &  Haywood  Co.  v.  Wun- 
Pac.  R.  363.  der,  64  Minn.  450,  67  N.  W.  R.  357. 

2  Ellis  v.   Denver,  etc.  Ry.  Co.,  7 
Colo.  App.  350. 

293 


§  320.]  LA.W    OF   SALE.  [BOOK   I. 

the  statute,  "  but  was  a  contract  for  the  manufacture  of  articles 
of  special  and  peculiar  design,  not  suitable  for  the  general 
trade."  As  authority  for  this  position  the  court  cites  a  very- 
early  case l  in  the  same  State,  in  which,  after  an  exhaustive  re- 
view of  the  authorities,  an  identical  conclusion  is  reached. 

In  this  latter  case  the  plaintiff  orally  agreed  to  prepare  and 
fit,  for  putting  up  in  a  specified  place,  four  portable  houses;  he 
was  only  to  fit  the  materials  and  not  to  put  up  the  houses.  The 
court  said  that  the  contract  was  not  one  for  the  sale  of  goods, 
and  cites  with  approval  the  rule  laid  down  by  Mr.  Parsons,2 
that  if  the  contract  states  or  implies  that  the  thing  is  to  be 
made  by  the  seller,  blending  the  price  of  the  thing,  and  the 
compensation  for  materials,  work,  labor  and  skill  indiscrimi- 
nately, it  is  not  a  contract  of  purchase  and  sale  within  the  stat- 
ute, but  is  one  of  hiring  and  service. 

§  320.  The  rule  in  Missouri. —  In  a  recent  case3  in 

Missouri  the  subject  is  very  fully  examined,  and  the  following 
rule  is  formulated :  "  That,  where  the  contract  is  for  articles- 
coming  under  the  general  denomination  of  goods,  wares  and 
merchandise,  the  vendor  being  at  the  same  time  a  manufacturer 
and  a  dealer  in  them  as  a  merchant,  or,  so  dealing,  has  them 
manufactured  for  his  trade  by  others;  and  the  vendee  being 
also  a  merchant  dealing  in  and  purchasing  the  same  line  of 
goods  for  his  trade,  of  which  fact  the  vendor  is  aware;  the 
quantity  required  and  the  price  being  agreed  upon,  and  the 
goods  contracted  for  being  of  the  same  general  line  which 
the  vendor  manufactures  or  has  manufactured  for  his  general 
trade  as  a  merchant,  requiring  the  bestowal  of  no  peculiar 
care  or  personal  skill  or  the  use  of  material,  or  a  plan  of  con- 
struction different  from  that  obtaining  in  the  ordinary  produc- 
tion of  such  manufactured  goods  for  the  vendor's  general  stock 
in  trade,  the  contract  is  one  of  sale,  and  within  the  statute  of 

iPhipps  v  McFarlane,  3  Minn.  61  spratt  v.  Miller,  109  Mo.  78,  18  S. 
(109).  W.  R.  965,  32  Am.  St.  R.  656. 

2  Parsons    on    Contracts,    vol.    II, 
p.  344  [voL  III,  8th  ed.,  *p.  54]. 

294 


CB.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  321,  322. 

frauds,  although  the  goods  are  not  in  solido  at  the  time  of  the 
•contract,  but  are  to  be  thereafter  made  and  delivered." 

§  321.  The  rule  in  Georgia. —  In  a  case1  in  Georgia, 

often  cited,  the  cases  in  which  the  statute  may  or  may  not  apply, 
and  the  rules  applicable  to  them,  are  classified  as  follows:  "All 
contracts  for  the  sale  of  goods,  existing  at  the  time  in  solido, 
and  capable  of  immediate  delivery,  constitute  a  class  about 
which  there  can  be  no  difficulty  —  they  are  within  the  statute, 
without  a  case  to  the  contrary.  The  other  class  of  contracts 
which  are  equally  free  from  difficult}'  are  like  that  in  Towers 
v.  Osborne,  where  an  agreement  is  made  for  goods  not  in  esse, 
and  therefore  incapable  of  immediate  delivery,  but  by  the 
agreement  to  be  made  by  the  work  and  labor  and  with  the 
material  of  the  vendor,  and  which,  when  made,  may  be  reason- 
ably presumed  to  be  unsuited  to  the  general  market,  such  as 
contracts  for  the  manufacture  of  goods  suited  alone  to  a  par- 
ticular market,  or  for  the  painting  of  one's  own  portrait.  In 
a  former  class,  the  contracts  are  for  the  sale  of  goods  upon 
which  no  work  or  labor  is  to  be  bestowed.  In  the  latter  class, 
the  work  and  labor  and  material  constitute  the  prime  considera- 
tion. They  are  for  work  and  labor,  and  are,  by  authority  and 
upon  principle,  without  the  influence  of  the  statute.  Ex  equo 
et  bono,  a  man  who  agrees  to  bestow  his  labor  in  the  manu- 
facture of  goods  for  a  price,  and  which  price  he  must  lose  un- 
less the  goods  are  received  by  him  who  ordered  them,  ought  to 
be  paid;  and  a  statute  which  would  protect  the  purchaser  from 
liability  in  such  a  case,  would  be  alike  impolitic  and  unjust. 

§  322.  .  "The  cases  which  are  difficult  of  determination 

are  those  which  partake  in  some  degree  of  both  the  classes 
referred  to,  yet  fall  decidedly  within  neither  —  contracts  for 
goods  upon  which  some  labor  must  be  bestowed  to  prepare 
them  for  delivery,  and  which,  when  ready  for  delivery,  are 
vendible  in  the  general  market.  .  .  .  There  really  is  but 
one  exception  to  the  operation  of  the  statute,  to  wit :  contracts 

1  Cason  v.  Cheely  (1849),  6  Ga.  554 
295 


§  323.]  LAW    OF    SALE.  [liOOK   I. 

for  work  and  labor;  and  this  grows  out  of  the  palpable  injus- 
tice of  compelling  a  man,  by  law,  in  any  case  to  lose  the  price 
of  his  labor.  All  cases  which  are  not  within  the  reason  of  this 
exception  are  not  within  the  exception  itself.  Hence  it  is 
that  a  contract  for  goods  (cotton  bagging  or  cotton  cloth,  if 
you  please)  which  are  of  pretty  uniform  value,  of  common 
consumption,  and  therefore  very  generally  in  demand,  with  a 
manufacturer  of  these  articles,  is  not  within  the  exception,  al- 
though not  in  esse  at  the  time,  and  to  make  which  work  and 
labor  are  necessary.  The  manufacturer  does  not  necessarily 
lose  the  price  of  his  labor  —  if  the  purchaser  does  not  take  the 
goods,  others  will  —  the  work  and  labor  bestowed  are  in  the 
line  of  his  business,  and  his  work  and  labor  would  be  bestowed 
in  the  production  of  such  goods  had  the  contract  not  been 
made.  The  goods  and  their  price  are  the  considerations  of  the 
contract,  and  not  the  work  and  labor  and  their  price.  With 
greater  reason  a  contract  for  goods  upon  which  work  and  labor 
must  be  bestowed,  not  to  make  them,  but  to  prepare  them  for 
delivery,  as  the  threshing  of  wheat,  is  not  within  the  exception. 
In  the  light  of  all  these  views,  the  rule  which  we  adopt  and 
which  I  find  admirably  well  expressed  by  Judge  Butler  in  Bird 
v.  Muhlinbrink,1  is  this:  Such  contracts  only  are  excluded  from 
the  operation  of  the  seventeenth  section  of  the  statute  of  frauds 
'  as  primarily  contemplate  work  and  labor  to  be  done  at  the 
instance  of  the  purchaser  and  for  his  use  and  accommodation, 
so  as  to  make  the  work  and  labor  of  the  contracting  vendor, 
or  such  as  he  may  procure  to  be  bestowed  at  his  expense,  the 
essential  consideration  of  the  contract.'  The  cases  which  recog- 
nize the  principle  thus  expressed  are  numerous." 

§  323.  The  rule  in  Maryland. —  In  a  late  case2  in  this 

State,  it  is  said  that  "  from  a  very  early  period  it  has  been  the 
settled  law  of  Maryland,  where  the  statute  of  Charles  has  al- 
ways been  in  force,  that  when  work  and  labor  are  to  be  be- 
stowed by  the  vendor  upon  the  article  sold  before  it  is  to  be 

1 1  Rich.  (S.  C.)  L.  199,  44  Am.  Dec.        2  Bagby  v.  Walker,  78  Md.  239,  27 
247.  AtL  R.  1033. 

29G 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF   FKATJDS. 


[§  324. 


delivered,  the  contract  is  not  within  the  statute.1  And  the 
reason  is  that  when  work  and  labor  are  necessary  to  prepare 
an  article  for  delivery,  the  work  and  labor  to  be  done  by  the 
vendor  form  part  of  the  consideration  of  the  contract,  and,  as 
these  are  not  within  the  statute,  the  sale  is  not  a  sale  of  goods, 
wares  and  merchandise  within  the  meaning  of  the  seventeenth 
section." 


§  324. 


The  rule  in  Iowa.—  The  statute  of  frauds  in 


Iowa  contains  an  exception  which  provides  that  the  statute 
snail  not  apply  "  when  the  article  of  personal  property  sold  is 
not,  at  the  time  of  the  contract,  owned  by  the  vendor  and 
ready  for  delivery,  but  labor,  skill  or  money  are  necessarily  to 
be  expended  in  producing  or  procuring  the  same."  In  a  recent 
case2  it  appeared  that  the  plaintiff  had  orally  contracted  with 


i  Eichelberger  v.  McCauley.  5  H.  & 
J.  (Md.)  213,  9  Am.  Dec.  514;  Rentch 
v.  Long.  27  Md.  188. 

zffighell   v.  Dougherty,  86  Iowa, 
480,  53  N.  W.  R.  402,  17  L.  R.  A.  755. 
The  court  further  said:  "  A  brief  re- 
view of  a  few  cases  which  support 
the  rule  above  laid  down  may  bet- 
ter illustrate  its  application.     Baker, 
Sales.  §  54.     Chief  Justice  Shaw  held 
that  when  a  contract  is  for  an  arti- 
cle then  existing,  or  such  an  article 
as  the  vendor  '  usually  has  for  sale 
in  the  course  of  his  business,  the 
statute  applies.'    Mixer  v.  Howarth, 
21  Pick.  205,  32  Am.  Dec.  256.    In  the 
same  case,  Harris,  J.,  expressed  the 
opinion  that,  if  the  work  and  labor 
required  to  be  done,  in  order  to  fit 
the  subject-matter  of  the  contract 
for  delivery,  was  to  be  done  for  the 
vendor,  the  case  would  be  within 
the  statute.    Story  said  '  that,  where 
the  subject-matter  of  the  contract 
was  not  to  be  created  by  manufact- 
ure, but,  being  already  in  existence, 
was  merely  to  be  subjected  to  cer- 


tain labor  for  the  purpose  of  render- 
ing it  deliverable,  or  perhaps  even 
of  changing  its  character,  the  con- 
tract would  be  within  the  statute  of 
frauds,  it  being  essentially  a  con- 
tract of  sale.'  Story,  Sales  (Perkins' 
ed.),  ?'?■  260-260&.  In  other  words,  if 
the  labor  and  service  were  wholly 
incidental  to  a  subject-matter  in  esse, 
the  statute  applied."    Id.,  §  260c. 

"  The  rule  is  thus  stated  in  a  late 
Massachusetts  case:  '  A  contract  for 
the  sale  of  articles  then  existing,  or 
such  as  the  vendor,  in  the  ordinary 
course  of  business,  manufactures  or 
procures  for  the  general  market, 
whether  on  hand  or  not,  is  a  con- 
tract for  the  sale  of  goods,  to  which 
the  statute  applies.  But.  on  the 
other  hand,  if  the  goods  are  to  be 
manufactured  especially  for  the  pur- 
chaser, and  upon  his  special  order, 
and  not  for  the  general  market,  the 
case  is  not  within  the  statute.'  God- 
dard  v.  Binney,  115  Mass.  450,  15  Am. 
R.  112.  In  O'Neil  v.  New  York  &  S. 
P.  Min.  Co.,  3  Nev.  141,  the  court, 


297 


§  324.] 


LAW    OF    SALE. 


[BOOK    I. 


defendant  for  the  delivery  to  plaintiff,  at  a  certain  price,  of 
fifteen  hundred  bushels  of  oats,  then  raised  .but  unthreshed. 
Defendant,  having  made  default,  contended  that  the  contract 
was  within  the  statute,  while  plaintiff  urged  that  the  case  fell 


virtually  following  the  rule  laid 
down  in  Massachusetts,  held  that, 
to  make  the  case  one  for  work  and 
labor,  the  contract  should  contem- 
plate or  require  some  change  in  the 
condition,  business  or  circumstances 
of  the  vendor.  In  Downs  v.  Ross,  23 
Wend.  270.  the  contract  was  for  the 
purchase  of  wheat,  only  a  part  of 
which  was  threshed,  and  that  which 
had  been  threshed  was  to  be  further 
cleaned.  It  was  held  that  the  case 
was  one  of  sale,  not  for  work  and 
labor.  The  court  said:  '  If  the  thing 
sold  exist  at  the  time  in  solido,  the 
mere  fact  that  the  seller  is  to  do 
something  to  put  it  in  a  marketable 
condition  did  not  take  the  contract 
out  of  the  operation  of  the  statute  of 
frauds.'  Cooke  v.  Millard,  5  Lans. 
246;  Baker,  Sales,  §£  30,  43.  In  Gil- 
man  v.  Hill,  36  N.  H.  311,  it  was  held 
that  a  contract  for  sheep  pelts,  to  be 
taken  from  sheep,  was  a  contract  of 
sale.  So  a  contract  for  the  purchase 
of  all  the  flax  straw  to  be  raised 
from  forty-five  bushels  of  flax  seed, 
and  to  be  '  delivered  in  a  dry  condi- 
tion, free  from  grass,  weeds  and  all 
foreign  substances,'  was  held  a  con- 
tract of  sale,  not  for  work,  labor  or 
skill,  in  producing  the  straw.  Brown 
v.  Sanborn,  21  Minn.  402.  When 
wheat  was  sold  to  be  delivered  at  a 
certain  mill,  and  there  was  a  con- 
flict in  the  evidence  as  to  whether 
all  of  it  was  threshed  prior  to  the 
time  of  making  the  contract,  and 
the  court  refused  to  instruct  the 
jury  that,  the  wheat  existing  in 
solido  at  the  time  the  contract  was 


made,  and  not  having  to  be  raised  or 
manufactured,  though  unthreshed, 
it  was  a  contract  within  the  statute 
of  frauds,  and  the  plaintiff  could  not 
recover,  the  case  was  reversed  for 
the  refusal  to  give  the  instruction. 
The  court  adhered  to  the  doctrine 
that  a  contract  for  the  sale  of  goods 
which  may  not  at  the  time  of  such 
contract  be  actually  made,,  procured 
or  provided,  or  fit  or  ready  for  deliv- 
ery, or  some  act  may  be  requisite  for 
the  making  or  completing  thereof, 
or  rendering  the  same  fit  for  deliv- 
ery, is  within  the  statute.  Hardell  v. 
McClure,  2  Pinn.  289,  1  Chand.  271. 

"In  a  cause  decided  in  1882  this 
same  court  approved  the  holding  in 
Handell  v.  McClure,  and,  in  referring 
to  the  contract  in  that  case,  says:  '  It 
was  clearly  not  a  contract  for  special 
labor  in  manufacturing  anything, 
but  a  contract  to  sell  and  deliver  a 
certain  quantity  of  wheat.'  Meincke 
v.  Falk,  55  Wis,  437,  13  N.  W.  R.  545. 
See  Clark  v.  Nichols,  107  Mass.  547. 
A  contract  for  the  sale  of  the  whole 
of  a  crop  of  cotton  for  a  certain  year, 
to  be  delivered  at  a  certain  price  per 
pound  as  soon  as  it  could  be  gathered 
and  prepared  for  market,  was  held 
within  the  statute.  Cason  v.  Cheely, 
6  Ga.  554.  The  rule  we  have  an- 
nounced as  applicable  to  the  case  at 
bar  also  finds  support  in  the  follow- 
ing cases:  Spencer  v.  Cone,  1  Met. 
283;  Lamb  v.  Crafts,  12  Met.  353; 
Gardner  v.  Joy,  9  Met.  177;  Prescott 
v.  Locke,  51  N.  H.  94,  12  Am.  R.  55; 
Atwater  v.  Hough,  29  Conn.  508,  79 
Am.  Dec.  229;  Finney  v.  Apgar,  31 


298 


CH.  VII.]  CONTRACT    UNDER   STATUTE    OF   FRAUDS.  [§  325. 

within  the  exception.  The  court  held,  however,  that  the  case 
was  not  within  the  exception,  but  was  a  contract  of  sale  within 
the  operation  of  the  statute.  Upon  the  first  point  the  court 
said  that  the  oats  were  not  produced  or  procured  since  the 
contract  within  the  meaning  of  the  exception.  "  The  grain 
existed  at  the  time  of  the  making  of  the  contract,  in  the  iden- 
tical form  in  which  it  would  finally  be  sold.  True,  it  must  be 
harvested  and  separated  from  the  straw  and  chaff.  So  the 
grain  was  not  produced  by  the  defendant  at  all,  nor  did  he 
procure  it.  He  had  the  oats,  but,  to  put  them  in  proper  shape 
for  market,  he  must  cut,  thresh  and  haul  them.  All  this  he 
would  have  done  at  his  own  instance,  even  if  he  had  never 
heard  of  the  plaintiff.  This  labor,  skill  and  money,  then,  was 
not  expended  specially  at  the  instance  of  the  plaintiff." 

§  3*25.  .  Upon  the  second   point  the   court  said :  "  In 

cases  like  this  we  think  the  true  rule  is,  if  the  grain  is  sold  and 
no  part  of  it  delivered,  and  no  part  of  the  price  is  paid,  and 
the  contract  is  not  in  writing,  and  the  labor,  skill  and  money 
which  is  necessary  to  be  expended  upon  it  to  fit  it  for  market 
is  such  only  as,  in  the  ordinary  course  of  the  defendant's  busi- 
ness, he  would  be  compelled  to  expend  upon  it,  or  devote  to 
it,  in  order  to  preserve  and  care  for  it  as  a  good  husbandman, 
the  case  is  purely  a  sale,  and  comes  within  the  statute.  It  may 
be,  if  the  defendant  had  contracted  to  plant  or  raise  a  crop  of 
such  a  character  or  kind  as  required  special  skill,  labor  or 
work,  other  than  that  required  in  the  ordinary  performance  of 
his  labors  incident  to  raising  and  harvesting  his  crops,  and 
such  special  skill  and  labor  was  contemplated  at'  the  time  the 

N.  J.  L.  266;  Edwards  v.  Grand  Trunk  would  have  done  if  there  had  been 
E.  Co.,  48  Me.  379,  54  Me.  105;  Saw-  no  contract  of  sale.  The  case,  then, 
yer  v.Ware,  36  Ala.  675;  Bird  v.Muh-  is  one  clearly  within  our  statute, 
linbrink,  1  Rich.  (S.  C.)  L.  199.  The  contract  not  being  in  writing, 
"  The  evidence  in  this  case  shows  no  part  of  the  price  having  been 
without  conflict  that  the  defendant  paid,  none  of  the  oats  having  been 
expended  no  work,  labor,  skill  or  delivered,  no  evidence  of  the  con- 
money  on  the  oats  other  than  he  tract  was  properly  receivable." 

299 


§§  320,  327.]  law  of  sale.  [book  r. 

contract  was  made,  and  was  to  be  bestowed  at  the  instance  of 
and  for  the  benefit  of  the  plaintiff,  that  the  case  would  be  within 
the  exception  provided  in  our  statute." 

In  a  later  case l  a  contract  for  the  sale  of  corn  to  be  shelled, 
and  that  unfit  for  shelling  to  be  thrown  out,  was  held  to  be 
within  the  statute,  as  no  labor  was  theu  necessary  to  produce 
or  procure  the  corn. 

§  326.  The  true  rule. —  The  simplest  and  most  satis- 
factory rule  is  doubtless  that  laid  down  by  the  English  court 
in  Lee  v.  Griffin.  The  fact  that  it  was  decided  in.  contempla- 
tion of  Lord  Tenterden's  Act  can  be  of  no  importance,  inas- 
much as  it  has  always  been  conceded  in  the  United  States  that 
the  statute  of  frauds  is  applicable  to  executory  contracts.  The 
New  York  distinction  between  things  in  existence  and  those 
not  in  existence,  while  definite  and  easily  applied,  is  purely 
arbitrary,  and  is  in  manifest  conflict  with  the  clear  intention 
of  the  parties  in  many  cases.  The  Massachusetts  rule,  which 
excludes  from  the  operation  of  the  statute  contracts  for  those 
articles  which  the  vendor  does  not  usually  make,  but  which  he 
undertakes  to  make  in  the  particular  instance  in  accordance 
with  the  special  order  of  his  customer,  is  more  nearly  satisfac- 
tory; but  this  distinction  also,  in  some  cases,  does  violence  to 
the  intention  of  the  parties,  inasmuch  as  it  is  usually  the  re- 
sult, and  not  the  means  or  the  method,  which  the  parties  are 
contracting  for. 

Lee  v.  Griffin,  however,  has  found  but  little  following  in  the 
United  States,  while  the  Massachusetts  rule  seems  likely  to  be 
received  with  favor  wherever  the  courts  are  not  debarred  by 
earlier  decisions  from  adopting  it. 

3.  Auction  Sales. 

§  327.  Sales  by  auction  are  within  the  statute. —  Notwith- 
standing some  early  doubts,  it  is  now  entirely  settled  that  sales 

1  Lewis  v.  Evans  (1899),  108  Iowa,  effect:  Dierson  v.  Petersmeyer  (1899), 
296,  79  N.  W.  R.  81.   See,  also,  to  same    —  Iowa,  — ,  80  N.  W.  R.  389. 

300 


OH.  VII.]  CONTRACT    UNDER    STATUTE    OF   FRAUDS.       [§§  328,  329. 

of  chattels  at  auction  are  sales  within  the  operation  of  the 
statute  of  frauds.1 

4.  Contracts  for  Exchange  or  Resale. 

§  328.  Contracts  for  exchange  or  resale,  when  within  the 
statute. —  Contracts  of  barter  or  exchange  are  included  within 
the  provisions  of  the  seventeenth  section.2  So  an  independent 
contract  for  the  rescission  of  an  unconditional  sale  and  the 
repurchase  of  the  goods  is  within  the  statute;  but  not  where 
the  agreement  for  the  rescission  and  resale  was  part  of  the  orig- 
inal contract.3 

III. 

"What  are  Goods,  Wares  and  Merchandise. 

§  329.  English  rule  includes  only  corporeal  movable  prop- 
erty.—  "  The  seventeenth  section  of  the  statute,"  says  Mr.  Ben- 
jamin (§  111)  in  laying  down  the  English  rule,  "  applies  to  con- 
tracts for  the  sale  of  'goods,  wares  and  merchandise,' — words 
which  comprehend  all  corporeal  movable  property.  The  statute, 
therefore,  does  not  apply  to  shares,  stocks,  documents  of  title, 
choses  in  action,  and  other  incorporeal  rights  and  property. 
The  following  cases  have  been  decided  on  this  point:  The  stat- 
ute does  not  apply  to  a  sale  of  shares  in  a  joint-stock  banking 
company,4  nor  to  a  sale  of  stock  of  a  foreign  State,5  nor  to  a 

i  Davis  v.  Eowell,  2  Pick.  (Mass.)  N.  E.  E.  377,  15  Am.  St.  E,  394,  5  L. 

64,  13  Am.  Dec.  398;  Pike  v.  Balch,  E.  A.  630;  Fay  v.  Wheeler,  44  Vt.  292 

38  Me.  302,61  Am.  Dec.  248;  John-  Williams  v.  Burgess,  10  Ad.  &  E.  499 

son  v.  Buck,  35  N.  J.  L.  338,  10  Am.  Dickinson  v.  Dickinson,  29  Conn.  600 

E.  243;  Norris  v.  Blair,  39  Ind.  90.  Hilliard  v.  Weeks,  137  Mass.  304. 

2  Bennett  v.  Hull,  10  Johns.  (N.  Y.)  Contract  for  payment  of  debt  in 
364;    Eutan  v.   Hinchman,  30  N.  J.  goods  is  a  sale  within  the  statute. 

.   L.  (1  Vroom),  255;    Ash  v.  Aldrich,  Sawyer  v.  Ware  (1860),  36  Ala.  675. 

67  N.  H.  581,  39  Atl.  E.  442;  Gorman  Contra,  Woodford  v.  Patterson  (1860), 

v.  Brossard  (1899),  120  Mich.  611,  79  32  Barb.  (N.  Y.)  630. 

N.  W.  E.  903.  4  Humble  v.  Mitchell,  11  A.  &  E. 

3  Wulschner  v.  Ward,  115  Ind.  219;  205. 

Johnston  v.  Trask,  116  N.  Y.  136,  22        5  Heseltine  v.  Siggers,  1  Ex.  856. 

301 


§§  330,  331.]  law  or  sale.  [book  r. 

sale  of  railway  shares,1  nor  to  a  sale  of  shares  in  a  mining  com- 
pany on  the  cost-book  principle,2  nor  to  a  sale  of  tenants'  fix- 
tures."3 

§  330.  Rule  in  United  States  more  comprehensive. —  In  the 

United  States,  as  will  be  observed  from  the  summary  given,4 
the  statutes  are  often  more  comprehensive  than  the  English 
act,  extending  to  "goods"  in  some  cases,  and  in  others  to  "per- 
sonal property."  This  variance  has  caused  a  somewhat  differ- 
ent line  of  results  to  be  reached  here,  though  there  is  doubtless 
at  the  same  time  a  tendency  to  give  the  statute  in  its  original 
form  a  more  liberal  interpretation.3  The  general  rule  in  this 
country  unquestionably  includes  not  only  corporeal  movable 
property,  both  animate  and  inanimate,6  but  also  those  choses 
in  action  "which  are  subjects  of  common  sale  and  barter,  and 
which  have  a  visible  and  palpable  form."7 

§  331.  What  included  —  Stocks  —  Notes  —  Inventions,  etc. 

Thus,  live  animals  are  included.  "For  whatever  may  have 
been  the  received  meaning  formerly  of  the  words  'goods  and 
merchandise,'  it  is  quite  certain  that  at  present,  according  to 
our  standard  linguistic  authorities,  the  word  goods '  may  well 
include  oxen." 8 

Stocks  in  corporations,  which  are  generally  not  included  in 
England,  are  here  usually  deemed  to  be  within  the  statute, 
though  this  ruling  in  some  cases  was  made  under  the  more  com- 
prehensive statutes  referred  to.    In  the  leading  case 9  in  Massa- 

1  Tempest  v.  Kilner,  3  C.  B.  249;  ^Weston  v.  McDowell  (1870),  20 
Bowlby  v.  Bell,  3  C.  B.  284;  Bradley    Mich.  353. 

v.  Holdsworth,  3  M.  &  W.  422;  Dun-  7Sonierby  v.  Buntin,  supra.     See 

cuft  v.  Albrecht.  12  Sim.  189.  also  Wood  on    Statute    of  Frauds, 

2  Watson  v.  Spratley,  10  Ex.  222;  §283;  Browne  on  Statute  of  Frauds, 
Powell  v.  Jessopp,  18  C.  B.  336.  g  295. 

3  Lee  v.  Gaskell,  1  Q.  B.  Div.  700.  8  Weston    v.   McDowell  (1870),   20 

4  See  ante,  %%  286,  287.  Mich.  353. 

5  Thus  see,  per  Gray,  C.  J.,  in  9Tisdale  v.  Harris  (1838),  20  Pick. 
Somerby  v.  Buntin  (1875),  19  Am.  R.  (Mass.)  9.  So  also  Boardman  v.  Cut- 
459;  and  Graves,  J.,  in  Weston  v.  ter  (1880),  128  Mass.  388;  Pray  v. 
McDowell  (1870),  20  Mich.  353.  Mitchell  (1872),  60  Me.  430;  North  v. 

302 


CH.  VII.]  CONTRACT    UNDER    STATUTE   OF    FRAUDS.  [§  331. 

chusetts,  where  the  statutory  language  was  "goods,  wares  and 
merchandise,"  it  was  said:  "There  is  nothing  in  the  nature  of 
stocks,  or  shares  in  companies,  which  in  reason  or  sound  policy 
should  exempt  contracts  in  respect  to  them  from  those  reason- 
able restrictions  designed  by  the  statute  to  prevent  fraud  in 
the  sale  of  other  commodities.  On  the  contrary,  these  com- 
panies have  become  so  numerous,  so  large  an  amount  of  the 
property  of  the  community  is  now  invested  in  them,  and  as  the 
ordinary  indicia  of  property,  arising  from  delivery  and  posses- 
sion, cannot  take  place,  there  seems  to  be  peculiar  reason  for 
extending  the  provisions  of  this  statute  to  them."  On  the  other 
hand,  in  a  late  case  in  Maryland,1  it  is  said:  "A  subscription 
for  shares  of  stock  in  an  ordinary  corporation  is  not  a  contract 
for  the  sale  of  'goods,  wares  and  merchandise;'  words  which 
comprehend  only  corporeal  movable  property.  Shares  of  stock 
are  but  choses  in  action,  and  are  not  within  the  statute." 

Promissory  notes  are  also  in  the  doubtful  class,2  and  United 
States  treasury  checks  have  been  held  not  to  be  included.3 
Gold,  when  "  regarded,  not  as  money,  but  as  a  commodity,"  is 
within  the  statute;4  and  so  are  the  bills  of  a  State  bank;5  and 

Forrest  (1843),  15  Conn.  400;  Spear  v.        In   Meehan    v.   Sharp  (1890),   151 

Bach  (1892),  82  Wis.  192,  52  N.  W.  R  Mass.  565,  24  N.  E.  R.  90T,  it  is  said  to 

97-  Mayer  v.  Child  (1872),  47  Cal.  142;  be  at  least  doubtful  whether  a  sale 

Fine  v.  Hornsby  (1876),  2  Mo.  App.  of  stock  that  had  not  been  regularly 

61;  Bernhardt  v.  Walls  (1888),  29  Mo.  issued  could  be  brought  within  the 

App.   206;    Brownson    v.    Chapman  statute. 
(1875)  63  N  Y  625.  2  That  they  are  included:  Baldwin 

So  also  Southern  L.  Ins.  Co.  v.  Cole  v.  Williams  (1841),  3  Mete.  (Mass.) 

(1852)    4  Fla.  359,  though  here  the  365;  that  they  are  not:  Whittemore 

statute  says  «  personal  property."  v.  Gibbs  (1852),  24  N.  H.  484;  Vawter 

i  Webb  v.  Baltimore  &  East  Shore  v.  Griffin  (1872),  40  Ind.  593;  Hudson 

Ry.  Co.  (1893),  77  Md.  92,  26  Atl.  R.  v.  Weir  (1856),  29  Ala.  294. 
113,  39  Am.  St.  R.  396  [repudiating        3  Beers  v.  Crowell  (1831),  Dud.  (Ga.) 

Colvin  v.  Williams  (1810),  3  H.  &  J.  28. 

(Md.)  38,  5  Am.  Dec.  417].    See  also        4  Peabody  v.  Speyers  (1874),  06  N.  Y. 

Gadsden  v.  Lance  (1841),  1  McMul.  230. 

<S.  C.)   Eq.   87,    37    Am.    Dec.    548;        5  Gooch  v.  Holmes  (IS06),  41  Me. 

Vawter  v.  Griffin  (1872),  40  Ind.  593;  523. 
Rogers  v.  Burr  (1898),  105  Ga.  432,  31 
S.  E.  R  438,  70  Am.  St.  R.  50. 

303 


§§  332,  333.]  law  of  sale.  [book  i. 

so  has  been  held  to  be  an  account  against  a  private  person.1     A 
bond  and  mortgage  are  also  to  be  included.2 

An  invention  for  which  letters  patent  have  not  yet  been 
granted  is  held  not  within  the  statute,3  and  the  court  also  ex- 
pressed an  opinion  that  the  letters  patent  themselves  when 
granted  might  not  be,  though  this  was  confessedly  obiter} 

§332.  Fixtures. —  Whether  articles  of  personal  prop- 
erty, so  affixed  to  real  estate  as  to  fall  within  the  domain  of 
"  fixtures,"  are,  for  purposes  of  sale,  within  the  provisions  of  the 
seventeenth  section,  or  whether  they  are  to  be  governed  by  the 
provisions  relative  to  sales  of  interests  in  land,  is  a  question  of 
some  difficulty.  The  English  courts  construe  the  rule  that  what 
is  affixed  to  the  realty  is  to  be  deemed  part  of  it,  with  more 
strictness  than  the  American;  but  under  either  system  the 
question  whether  the  article  is  incorporated  into  the  realty  or 
is  only  annexed  to  it  is  a  material  one. 

g  333.  .  In  the  case  of  the  sale  by  a  tenant  of  a  remov- 
able fixture,  to  be  removed  by  the  tenant  for  delivery  within 

i  Walker  v.  Supple  (1875),  54  Ga.  and  effect  of  words  which  have  al- 

178.  ready  been  carried  quite  far  enough. 

^  Greenwood  v.  Law  (1892),  55  N.  J.  "  But  it  is  not  necessary  in  this 

L.  168,  26  Atl.  R.  134.  case  to  go  so  far  as  to  say  that  a  sale 

3  Somerby    v.    Buntin    (1875),   118  of  letters  patent  for  an  invention  is 

Mass.  279,  18  Am.  R.  459.  not  within  the  statute    of  frauds. 

"The  words  of  the  statute,"  said  Before  letters  patent  are. obtained, 

Gray,  C.  J.,  "have  never  yet  been  the  invention  exists  only  in  right,, 

extended  by  any  court  beyond  secu-  and  neither  that  right,  nor  any  evi- 

rities  which  are  subjects  of  common  dence  of  it,  has  any  outward  form 

sale  and  barter,  and  which  have  a  which  is  capable  of  being  transferred 

visible  and  palpable   form.     To  in-  or  delivered  in  specie,  or  which,  upon 

elude  in  them  an  incorporeal  right  any  construction,   however  liberal, 

or  franchise,  granted  by  the  govern-  can  be  considered  as  goods,  wares  or 

ment,  securing  to  the  inventor  and  merchandise." 

his  assigns  the  exclusive  right  to  4  Jones  v.  Reynolds  (1890),  120  N.  Y. 

make,  use  and  vend  the  article  pat-  213,  24  N.  E.  R.  279,  assumes  the  con- 

ented ;    or  a  share    in    that    right,  trary  to  be  true, 

which  has  no  separate  or  distinct  ex-  A  contract  for  publication  of  an 

istence  at  law  until  created  by  the  advertisement  is  not  within  the  stat- 

instrument  of  assignment,  would  be  ute.     Goodland  v.  Le  Clair  (1890),  78- 

unreasonably  to  extend  the  meaning  Wis.  176,  47  N.  W.  R.  268. 

304 


CH.  VII.]  CONTRACT   UNDER   STATUTE   OF    FRAUDS.       [§§  334,  335. 

the  term,  there  could  be  little  doubt  that  the  sale  would  be 
treated  as  a  sale  of  a  chattel ;  and  it  is  probable,  too,  that  the 
same  result  would  be  reached  where  the  article  was  to  be  re- 
moved by  the  buyer  during  the  tenant's  term.1  The  same  rule 
would  also  govern  where  the  owner  of  a  chattel,  e.  g.,  a  build- 
ing, places  it  temporarily  on  the  land  of  another  with  the  hitter's 
consent:  it  would  retain  its  character  as  a  chattel  whatever 
might  be  thought  of  the  assignability  of  the  license  to  re- 
move it.2 

§  334.  .  So,  as  between  the  owner  of  land  and  his  vendee 

of  chattels  thereto  annexed  to  be  removed  and  delivered  by  the 
seller,  there  could  be  as  little  doubt  that  the  articles  sold  would 
be  regarded  as  goods,  wares  and  merchandise  and  not  as  land.3 
And  a  sale  of  like  articles  to  be  removed  by  the  purchaser  has 
been  held  not  to  be  a  sale  of  an  interest  in  land.4  Such  a  sale 
authorizes  the  purchaser  to  enter  upon  the  land  to  remove  the 
article,  and  this  license  has  been  held  to  be  irrevocable.5 

§  335.  .  As  between  such  a  purchaser,  however,  and  a 

honafide  purchaser  who  bought  the  land  before  the  articles  had 

1  See  cases  following  in  this  and  3  Bostwick  v.  Leach,  3  Day  (Conn.), 

the    succeeding  section.      See    also  476;  Michael  v.  Curtis  (1891),  60  Conn. 

Heysham  v.  Dettre,  89  Pa.  St.  506;  863.  22  Atl.  R.  949;  Long  v.  White,  42 

Powell  v.  McAshan,  28  Mo.  70.  Ohio  St.  59;  Moody  v.  Aiken  (1887), 

On  a  sale  by  the  tenant  to  his  land-  50  Tex.  65;  Shaw  v.  Carbrey  (1866), 

lord,  the  fixtures  not  having  been  re-  13  Allen  (Mass.).  462.    Nut  unless  first 

moved  during  the  term,  the  fourth  severed   from  the   land.     Brown  v. 

section   does   not   apply   (Hallen   v.  Roland,  92  Tex.  54,  45  S.  W.  R.  795. 

Bunder.  1  Cr.  Mees.  &  Ros.  266);  nor  *  Rogers  v.  Cox,  96  Ind.  157,  49  Am. 

does  the  seventeenth.   Lee  v.  Gaskell,  R,  152;  Foster  v.  Mabe,  4  Ala.  402,  37 

1  Q.  B.  Div.  700.    See  also  South  Bal-  Am.  Dec.  749;  Bostwick  v.  Leach,  3 

timore  Co.  v.  Muhlbach  (1888),  69  Md.  Day  (Conn.),  476. 

395.  16  Atl.  R,  117.  5  Rogers  v.  Cox,  supra;  Sterling  v. 

-'Dame  v.  Dame,  38  N.  H.  429,  75  Warden,  51  N.  H.  217.  12  Am.  R.  SO; 

Am.  Dec.  195.      See  also  Keyser  v.  White  v.  Elwell,  48  Me.  360.  77  Am. 

District  No.  8  (1857),  35  X.  H.  477;  Dec.  231;  Nettleton  v.  Sikes,  8  Mete. 

Hartwell  v.  Kelly  (1875),  117  Mass.  (Mass.)  34. 
235. 

20  305 


§  330.] 


LAW    OF   SALE. 


[BOOK   I. 


been  removed  and  in  ignorance  of  their  separate  sale,  the  arti- 
cles would  doubtless  be  deemed  realty,  and  the  purchaser  of 
the  land  would  prevail,  leaving  the  purchaser  of  the  chattels 
to  his  remedy  against  the  seller.1 

§  336.  Growing  trees. —  Whether  a  sale  of  growing  trees  is 
a  sale  of  an  interest  in  land  is  a  question  upon  which  the  au- 
thorities are  much  in  conflict.  By  a  large  number  of  author- 
ities such  a  sale  is  regarded  as  a  sale  of  an  interest  in  lands,  and 
must  therefore  be  made  by  writing,  though,  of  course,  when 
severed,  the  trees  become  personalty.2 .  Where  the  trees  are  to 
be  severed  and  taken  from  the  land  by  the  vendee,  a  parol 
agreement  for  their  sale,  it  is  said  in  a  well-considered  case,3 


i  Prince  v.  Case,  10  Conn.  375,  27 
Am.  Dec.  675.  But  see  Russell  v. 
Richards,  10  Me.  429, 25  Am.  Dec.  254 

In  the  case  of  Thayer  v.  Rock,  13 
Wend.  (N.  Y.)  53,  a  contract  was 
made  by  parol  for  the  purchase  and 
sale  of  a  mill  site  and  timber.  The 
contract  was  entire  for  both,  the 
mill  site  being  an  interest  in  lands. 
So  much  of  the  contract  as  related 
to  this  was  void,  since  it  rested  en- 
tirely in  parol;  but  it  was  contended 
that,  as  there  had  been  part  payment 
of  the  purchase  price,  the  contract 
should  be  maintained  as  to  the  per- 
sonalty, i.  e.,  the  timber;  but  the 
court  held  that  the  contract,  being 
entire,  must  stand  or  fall  as  a  whole; 
part  being  clearly  void,  the  whole  is 
bad  and  will  not  be  sustained. 

2Slocum  v.  Seymour,  36  N.  J.  L. 
138,  13  Am.  R.  432;  Green  v.  Arm- 
strong, 1  Denio  (N.  Y.),  550;  Buck  v. 
Pickwell,  27  Vt.  157  (but  see  Fitch 
v.  Burk,  38  Vt,  683;  Sterling  v. 
Baldwin,  42  Vt.  306);  Putney  v.  Day, 
6  N.  H.  430,  25  Am.  Dec.  470;  Kings- 
ley  v.  Holbrook,  45  N.  H.  313;  Harrell 
v.  Miller,  35  Miss.  700,  72  Am.  Dec. 


154;  Yeakle  v.  Jacob,  33  Pa.  St. 
376;  Huff  v.  McCauley,  53  Pa.  St. 
206;  Pattison's  Appeal,  61  Pa.  St. 
294;  Bowers  v.  Bowers,  95  Pa. 
St.  477  (but  see  McClintock's  Appeal, 
71  Pa.  St.  365);  Owens  v.  Lewis,  46 
Ind.  488, 15  Am.  R.  295;  Armstrong  v. 
Lawson,  73  Ind.  498;  Cool  v.  Peters 
Lumber  Co.,  87  Ind.  531;  Hostetter 
v.  Auman,  119  Ind.  7,  20  N.  E.  R. 
506:  Russell  v.  Myers,  32  Mich.  522; 
Wetmore  v.  Neuberger,  44  Mich. 
362;  Spalding  v.  Archibald,  52  Mich. 
365,  50  Am.  R.  253;  Daniels  v. 
Bailey,  43  Wis.  566;  Lillie  v.  Dun- 
bar, 62  Wis.  198;  Hicks  v.  Smith,  77 
Wis.  146,  46  N.  W.  R.  133;  Carpen- 
ter v.  Medford,  99  N.  C.  495,  6  Am. 
St.  R.  535;  Potter  v.  Everett,  40 
Mo.  App.  152;  Deland  v.  Vanstone,  26 
Mo.  App.  ^97;  Andrews  v.  Costican, 
30  Mo.  App.  29;  Railroad  Co.  v.  Free- 
man, 61  Mo.  80;  Alt  v.  Grosclose,  61 
Mo.  App.  409,  1  Mo.  App.  R.  645; 
Walton  v.  Lowrey,  74  Miss.  484,  21 
S.  R.  243;  Hirth  v.  Graham,  50  Ohio 
St.  57,  33  N.  E.  R.  90,  40  Am.  St,  R.  641. 
3  Owens  v.  Lewis,  46  Ind.  488,  15 
Am.  R.  295  [citing  Pierrepont  v.  Bar- 


306 


€11.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS. 


^  33G. 


"  will  amount  to  a  license  for  the  vendee  to  enter  upon  the 
vendor's  land  for  the  purpose  of  making  such  severance,  and, 
if  such  license  is  not  revoked  before  the  trees  are  severed,  the 
title  to  the  trees  will  vest  in  the  vendee,  and  the  license,  after 
severance,  will  become  coupled  with  an  interest  and  irrevocable, 
and  the  vendee  will  have  a  perfect  right  to  enter  and  remove 
the  trees  thus  severed;  but  if,  before  the  trees  are  severed,  the 
vendor  should  revoke  such  license,  no  title  will  pass  to  the 
sendee,  and  no  rights  will  vest  by  virtue  of  such  contract." 
This  seems  to  be  the  prevailing  rule.1 


nard,  2  Seld.  (N.  Y.)  279;  Drake  v. 
Wells,  11  Allen  (Mass.),  141;  Giles  v. 
Simomls.  15  Gray  (Mass.),  441.  77 
Am.  Dec.  37:3;  McNeal  v.  Emerson,  15 
Gray  (Mass.),  384;  Nettleton  v.  Sikes, 
8  Mete.  (Mass.)  34;  Heath  v.  Randall, 
•1  Cush.  (Mass.)  195;  Barnes  v.  Barnes, 
c>  \"t.  388;  Mumford  v.  Whitney,  15 
Wend.  (N.  Y.)  380,  30  Am.  Dec.  60; 
Smith  v.  Benson,  1  Hill  (N.  Y.),  176; 
Russell  v.  Richards,  10  Me.  429,  35 
Am.  Dec.  254;  Riddle  v.  Brown,  20 
Ala.  412,  56  Am.  Dec.  202;  Bennett  v. 
Scutt,  18  Barb.  (N.  Y.)  347;  Douglas 
v.  Shumway,  13  Gray  (Mass.),  198; 
Erskine  v.  Plummer,  7  Greeul.  (Me.) 
447,  22  Am.  Dec.  210:  Selch  v.  Jones, 
28  Ind.  255].  In  Fletcher  v.  Living- 
ston, 153  Mass.  388,  there  was  a  writ- 
ten contract  to  sell  to  plaintiff  "  all 
the  wood  and  timber  standing  "  on  a 
certain  piece  of  land,  li  with  one 
year's  time  to  get  it  off."  There  was 
a  verbal  extension  of  this  time,  and, 
after  the  vendor's  death,  a  written 
extension  by  her  administrator. 
None  of  the  timber  was  removed 
within  the  time  so  extended  and  the 
administrator  sold  the  land.  Plaint- 
iff brought  an  action  against  the  ad- 
ministrator and  the  purchaser  for 
respectively  selling  the  land  and 
cutting  the  timber.     Said  the  court: 


"It  is  well  settled  that  a  contract 
like  that  relied  on  by  the  plaintiff" 
does  not  immediately  pass  a  title  to 
property,  and  is  not  a  sale  or  a  con- 
tract for  a  sale  of  an  interest  in  land, 
but  an  executory  agreement  for  the 
sale  of  chattels,  to  take  effect  when 
the  wood  and  timber  are  severed 
from  t  lie  land,  with  a  license  to  enter 
and  cut  the  trees  and  remove  them. 
Such  a  contract,  if  oral,  is  not  within 
the  statute  of  frauds,  and  its  con- 
struction is  the  same  as  if  it  were  in 
writing.  Claflin  v.  Carpenter,  4  Mete. 
580;  Giles  v.  Simonds,  15  Gray.  441; 
Drake  v.  Wells,  11  Allen,  141;  Hill 
v.  Hill,  113  Mass.  103, 105;  United  So- 
ciety v.  Brooks,  145  Mass.  410.  The 
subject  was  fully  considered  by 
Chief  Justice  Bigelow  in  Drake  v. 
Wells,  nbi  supra,  and  was  discussed 
in  the  earlier  case  of  Giles  v.  Simonds, 
and  it  was  held  that  a  purchaser  of 
standing  wood  and  timber,  after  sev- 
ering the  trees  from  the  land,  had  an 
irrevocable  license  to  enter  and  re- 
move them;  but  that  before  they  are 
cut  his  license  may  at  any  time  be 
revoked  by  the  land-owner,  leaving 
him  no  remedy  but  an  action  to  re- 
cover damages  for  the  breach  of  the 
contract." 

1  In  addition    to  the  cases    cited 


307 


§  337.] 


LAW    OF    SALE. 


[book 


337. 


On  the  other  hand,  as  has  been  seen,  a  contract 


for  the  sale  of  trees  to  be  cut  and  delivered  by  the  vendor  has- 
been  held  to  be  a  sale  of  chattels,1  and  in  some  cases  a  parol 
contract  for  the  sale  of  trees  to  be  at  once  or  soon  cut  and  re- 
moved by  the  vendee  has  been  held  to  fall  within  the  seven- 
teenth section;2  and  in  one  such  case,3  where  the  vendee  had 
entered  and  cut  a  part  of  the  trees  and  sold  some  of  them  to 
a  third  person,  but  had  not  yet  removed  any,  and  the  vendor 
then  forbade  him  to  enter  on  the  land  and  to  cut  or  remove 
any  of  the  trees,  it  was  held  that  the  acts  of  the  vendee 
amounted  to  a  sufficient  acceptance  and  receipt  to  satisfy  the 
seventeenth  section,  and  that  the  parol  license  to  enter  and 
take  the  trees,  being  thus  coupled  with  a  valid  sale  of  them,  was 
irrevocable.     That  the  trees  are  to  be  soon  removed  seems  to 


above,  see  Poor  v.  Oakman,  104  Mass. 
309;  White  v.  Foster,  102  Mass.  375; 
Wilson  v.  Fuller,  58  Minn.  149,  59  N. 
W.  R.  988.  In  a  written  contract  for 
the  sale  of  all  the  pine  timber  on  cer- 
tain land,  a  stipulation  that  it  is  to 
be  cut  and  removed  before  a  certain 
date  is  a  condition  of  the  grant  and 
not  a  covenant,  and  conveys  all  the 
designated  timber  which  shall  be  re- 
moved within  the  time  specified. 
All  trees  which  the  grantee  cuts 
down  before  the  time  limited  be- 
come his  personal  property,  which 
he  has  a  right  to  remove  within  a 
reasonable  time,  even  though  the 
time  fixed  in  the  deed  has  expired. 
Hicks  v.  Smith,  77  Wis.  146,  46  N.  W. 
R  133. 

i  Smith  v.  Surman,  9  B.  &  C.  561. 

2  According  to  these  cases,  "  a  sale 
of  standing  trees  in  contemplation 
of  their  immediate  separation  from 
the  soil  by  either  the  vendor  or 
vendee  is  a  constructive  severance 
of  them,  and  they  pass  as  chattels, 
and  consequently    the    contract  of 


sale  is  not  embraced  by  the  statute." 
Byassee  v.  Reese,  4  Mete.  (Ky.)  372, 
83  Am.  Dec.  481  [citing  1  Greenl.  Ev., 
§  271 ;  Cain  v.  McGuire,  13  B.  Mon. 
(Ky.)  340].  In  Leonard  v.  Medford 
(1897),  85  Md.  666,  37  Atl.  R.  365,  37 
L.  R.  A.  449,  it  is  said:  "  In  Maryland, 
Massachusetts,  Maine,  Kentucky  and 
Connecticut  sales  of  growing  trees 
to  be  presently  cut  and  removed  by 
the  vendee  are  held  not  to  be  within 
the  operation  of  the  fourth  section 
of  the  statute  of  frauds.''  Citing 
Smith  v.  Bryan,  5  Md.  141, 59  Am.  Dec. 
104;  Purner  v.  Piercy,  40  Md.  212,  17 
Am.  R.  591;  Claflin  v.  Carpenter,  4 
Mete.  (Mass.)  5S0,  38  Am.  Dec.  381; 
Nettleton  v.  Sikes,  8  Mete.  (Mass.)  34; 
Bostwick  v.  Leach,  3  Day  (Conn.), 
476;  Erskine  v.  Plummer,  7  Me.  447, 
22  Am.  Dec.  216;  Cutler  v.  Pope,  13 
Me.  377;  Cain  v.  McGuire,  supra; 
Byasse  v.  Reese,  supra.  See  also 
Crosby  Hardwood  Co.  v.  Trester,  90 
Wis.  412,  63  N.  W.  R.  105<7. 

3  Marshall  v.  Green,  L.  R.  1  C.  P. 
Div.  35. 


308 


CH.  VII.]  CONTRACT    UNDEE    STATUTE    OF    FRAUDS.       [§§  338-340. 

be  the  test  applied  by  these  cases,  and  in  the  one  last  referred 
to  Lord  Coleridge  said :  "  I  think  we  must  look  to  the  position 
of  matters  at  the  time  of  the  contract;  and  I  think  that  where, 
at  the  time  of  the  contract,  it  is  contemplated  by  the  parties 
that  the  purchaser  should  derive  benefit  from  his  land,  then 
there  is  a  contract  within  the  fourth  section;  but  if  the  thing 
purchased  is  to  be  immediately  withdrawn  from  the  land,  then, 
the  parties  having  had  no  intention  of  dealing  with  any  in- 
terest in  or  concerning  land,  the  contract  does  not  fall  within 
that  section.'' 

§  338.  .  In  still  other  cases  this  distinction  is  repudi- 
ated. Thus  in  a  case  in  Maryland1  it  is  said:  "The  circum- 
stance that  the  produce  purchased  may,  or  probably  or  cer- 
tainly will,  derive  nourishment  from  the  soil  between  the  time 
of  the  contract  and  the  time  of  the  delivery,  is  not  conclusive 
as  to  the  operation  of  the  statute.  .  .  .  Where  timber  or 
other  produce  of  the  land,  or  any  other  thing  annexed  to  the 
freehold,  is  specifically  sold,  whether  to  be  severed  from  the 
soil  by  the  vendor  or  to  be  taken  by  the  vendee  under  a  spe- 
cial license  to  enter  for  that  purpose,  it  is  still,  in  contempla- 
tion of  the  parties,  a  sale  of  goods  only,  and  not  within  the 
statute." 

|  339.  .  "Where  trees  are  raised  for  the  purpose  of  trans- 
planting and  sale,  as  in  the  case  of  a  nursery,  it  is  held  that  a 
parol  sale  is  valid.2 

§34.0.  Growing  crops.  — Growing  crops  are  of  two 

kinds  —  those  which  spring  naturally  and  perennially  from  the 
soil,  such  as  grass,  fruit,  and  the  like,  and  known  as  fructus 
not urates;  and  those  which  do  not  spring  spontaneously  from 
the  soil,  but  grow  as  the  result  of  planting  or  sowing  of  seed 

i  Purner  v.  Piercy,  40  Md.  212,  17  Mete.  (Mass.)  313;  Miller  v.  Baker, 
Am.  R.  591.  id.  27. 

-'Whitmarsh   v.   Walker  (1810),   1 

309 


§§  341,  342.]  LAW   OF   SALE.  [book   r. 

and  cultivation,  such  as  corn,  wheat  and  other  cereals,  potatoes, 
and  the  like,  which  are  called  fructus  industriales. 

§  341.  Fructus  naturales. —  As  to  the  former  class, 

much  of  the  same  uncertainty  exists  which  prevails  as  to  grow- 
ing trees,  which  obviously  belong  to  the  same  class,  and  most 
of  that  which  has  been  said  regarding  trees  is  applicable  here. 
Mr.  Benjamin1  lays  down  the  English  rule  as  follows:  "Grow- 
ing crops,  if  fructus  naturales,  are  part  of  the  soil  Tjefore  sever- 
ance, and  an  agreement,  therefore,  vesting  an  interest  in  them 
in  the  purchaser  before  severance  is  governed  by  the  fourth 
section ;  but  if  the  interest  is  not  to  be  vested  till  they  are  con- 
verted into  chattels  by  severance,  then  the  agreement  is  an 
executory  agreement  for  the  sale  of  goods,  wares  and  merchan- 
dise, governed  by  the  seventeenth  and  not  by  the  fourth  sec- 
tion of  the  statute." 

In  the  United  States  a  variety  of  rules  have  been  suggested, 
though,  in  general,  the  English  rule  prevails.2  In  some  cases- 
it  has  been  thought  that  if  the  crops  were  yet  to  derive  some 
nourishment  from  the  soil,  the  contract  is  to  be  considered  one 
for  an  interest  in  land;  but  that,  where  the  process  of  veg- 
etation is  over,  or  where  the  parties  agree  that  the  thing* 
sold  shall  be  immediately  removed,  the  land  is  regarded  as- 
a  mere  warehouse  for  the  thing  sold,  and  the  contract  is  for 
goods. 

|  342,  Fructus  industriales. — In  respect  of  this  class 

Mr.  Benjamin3  gives  the  English  rule  as  follows:  "Growing 
crops,  if  fructus  industriales,  are  chattels,  and  an  agreement 
for  the  sale  of  them,  whether  mature  or  immature,  whether 
the  property  in  them  is  transferred  before  or  after  sever- 
ance, is  not  an  agreement  for  the  sale  of  anj^  interest  in  land 

i  Benjamin  on  Sales,  §  126.  strong,  1  Denio  (N.  Y.),  550;  Cutler 

2  See  cases  cited  supra  as  to  grow-    v.  Pope,  13  Me.  377;  Smith  v.  Leighton, 

ing  trees.     See  also  Wescott  v.  De-    38  Kan.  544,  5  Am.  St.  R.  778. 

lano,   20  Wis.   514;   Green   v.    Arm-        3  Benjamin  on  Sales,  §  126. 

310 


CH.  VII.]  CONTRACT   UNDER    STATUTE   OF   FRAUDS.       [§§  343,  344. 

and  is  not  governed  by  the  fourth  section  of  the  statute  of 
frauds." 

In  the  United  States  the  same  rule  prevails,1  though  it  is 
usually  held  that  a  sale  of  the  land  carries  with  it  the  crops 
growing  thereon  in  the  absence  of  a  written  reservation  of  the 
crops.2 

Such  crops  only,  it  is  held,  can  be  regarded  as  fructus  in- 
(hisfriales,  so  far  as  the  right  to  emblements  is  concerned,  as 
ordinarily  repay  the  labor  by  which  they  are  produced  within 
the  year  in  which  that  labor  is  bestowed,  though  the  crop  may, 
in  extraordinary  seasons,  be  delayed  beyond  that  period.3 

§  34-3.  — —  Fruit,  hops,  etc. —  Many  kinds  of  fruit  are  prop- 
erly to  be  classed  under  the  head  of  fructus  naturales,  and  so  it 
was  formerly  held  of  hops.  But  on  account  of  the  great  labor 
required  to  be  annually  bestowed  upon  them,  it  is  now  held  that 
hops4  and  many  kinds  of  fruit  are  rather  to  be  classed  among 
the  fructus  ind ust /'idles. 

§  344.  .  Thus,  in  a  leading  case  in  Maryland,5  it  was  held 

that  a  sale  of  a  crop  of  peaches  then  growing  in  the  seller's 
orchard,  to  be  gathered  and  removed  by  the  purchaser  as  they 
matured,  was  not  within  the  statute  as  a  sale  of  an  interest  in 
land,  the  court  saying  that  "  a  growing  crop  of  peaches  or  other 

1  Carson  v.  Browder,  2  Lea  (Term.),  Mcllvaine  v.  Harris,  20  Mo.  457,  64 

701;  Frank  v.  Harrington,  36  Barb.  Am.  Dec.  196. 

(N.  Y.)  415;  Davis  v.  McFarlane,  37  3  Graves  v.  Weld,  5  B.  &  Ad.  105. 

CaL  634,  99  Am.  Dec.  340;  Bricker  v.  4  Frank  v.   Harrington,   36    Barb. 

Hughes,  4  Ind.  146;    Weatherby  v.  (N.  Y.)  415;  Rodwell  v.  Phillips,  9  M. 

]  1 1  -ins,  6  Ind.  73;  Moreland  v.  Myall,  &  W.  501. 

14  Bush  (Ky.),  474;  Holt  v.  Holt,  57  sPurner  v.  Piercy,  40  Md.  212,  17 

Mo.  App.  272.  Am.   R.   591.    That  fruit   requiring 

2Vanderkarr  v.  Thompson,  19  Mich,  annual  labor,  like  apples,  peaches, 

82;  Tripp  v.  Hasceig.  20  Mich.  254:  blackberries,  and  the  like,  is  fructus 

Scriven  v.  Moote,  36  Mich.  64;  Rug-  industriales,    see    also    Smock    v. 

gles  v.  First  Nat.  Bank,  43  Mich.  192;  Smock,  37  Mo.  App.  56;  Vulicevich 

Coman  v.  Thompson,  47  Mich.   22;  v.  Skinner,  77  CaL  239. 
Knapp  v.  "Woolverton,  47  Mich.  292; 

311 


§  344.]  LAW,  OF    SALE.     .  [BOOK    I. 

fruit,  requiring  periodical  expense,  industry  and  attention  in. 
its  yield  and  production,  may  be  well  classed  as  fructus  in- 
dustriales,  and  not  subject  to  the  fourth  section  of  the  statute." 
In  this  case  the  court,  ignoring  many  of  the  distinctions  often 
made,  lays  down  the  rule  as  follows:  "  There  is  nothing  in  the 
vegetable  or  fruit  which  is  an  interest  in  or  concerning  land, 
when  severed  from  the  soil,  whether  trees,  grass  and  other 
spontaneous  growth  {prima  vestura),  or  grain,  vegetables,  or 
any  kind  of  crops  (fructus  industriales)  the  product  of  peri- 
odical planting  and  culture;  they  are  alike  mere  chattels,  and 
the  severance  may  be  in  fact,  as  when  they  are  cut  and  re- 
moved from  the  ground;  or  in  law,  as  when  they  are  growing, 
the  owner  in  fee  of  the  land,  by  a  valid  conveyance,  sells  them 
to  another  person,  or  where  he  sells  the  land,  reserving  them 
by  express  provision. 

"  As  a  general  rule,  if  the  products  of  the  earth  are  sold 
specifically,  and  by  the  terms  of  the  contract  to  be  separately 
delivered,  as  chattels,  such  a  sale  is  not  affected  by  the  fourth 
section  of  the  statute,  as  amounting  to  a  sale  of  any  interest  in 
the  land. 

"When  such  is  the  character  of  the  transaction,  it  matters 
not  whether  the  product  be  trees,  grass  or  other  spontaneous 
growth,  or  grain,  vegetables  or  other  crops  raised  periodically 
by  cultivation;  and  it  is  quite  as  immaterial  whether  the  prod- 
uct is  fully  grown  or  in  the  process  of  growing  at  the  time  of 
making  the  contract. 

"  The  circumstance  that  the  produce  purchased  may,  or  prob- 
ably or  certainly  will,  derive  nourishment  from  the  soil  be- 
tween the  time  of  the  contract  and  the  time  of  the  delivery,  is 
not  conclusive  as  to  the  operation  of  the  statute. 

"If  the  contract,  when  executed,  is  to  convey  to  the  pur- 
chaser a  mere  chattel,  though  it  may  be  in  the  interim  a  part 
of  the  realty,  it  is  not  affected  by  the  statute;  but  if  the  con- 
tract is,  in  the  interim,  to  confer  upon  the  purchaser  an  exclusive 
right  in  the  land  for  a  time,  for  the  purpose  of  making  a  profit 
of  the  growing  surface,  it  is  affected  by  the  statute,  and  must 

312 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  345-34:7. 

be  in  writing,  although  the  purchaser  is  at  the  last  to  take  from 
the  land  only  a  chattel." 

§  345.  Crops  to  be  raised.— A  contract  for  the  sale  of 

a  crop  to  be  raised  and  delivered  by  the  owner  of  the  soil  is 
clearly  not  within  the  provisions  of  the  fourth  section,1  though 
question  might  be  made  whether  it  was  a  contract  for  the  sale 
of  goods  or  a  contract  for  work  and  labor.2 

Contracts  for  crops  to  be  raised  by  the  party  who  is  to  have 
them  stand  obviously  upon  different  ground. 

g  346.  Uncut  ice. —  Ice  gathered  and  prepared  for  the 

market  is,  of  course,  a  subject  of  sale  as  personalty;3  but  even 
while  yet  uncut  and  ungathered  a  contract  for  its  sale  has  been 
held  to  be  for  a  sale  of  personalty.  Thus,  in  the  leading  case,4 
Campbell,  C.  J.,  says :  "  The  ephemeral  character  of  ice  renders 
it  incapable  of  any  permanent  or  beneficial  use  as  part  of  the 
soil,  and  it  is  only  valuable  when  removed  from  its  original 
place.  Its  connection  — if  its  position  in  the  water  can  be 
called  a  connection  —  is  neither  organic  nor  lasting.  Its  re- 
moval or  disappearance  can  take  nothing  from  the  land.  It 
can  only  be  used  and  sold  as  personalty,  and  its  only  use  tends 
to  its  immediate  destruction.  We  think  that  it  should  be  dealt 
with  in  law  according  to  its  uses  in  fact,  and  that  any  sale  of 
ice  ready  formed,  as  a  distinct  commodity,  should  be  held  a  sale 
of  personalty,  whether  in  the  water  or  out  of  the  water." 

§  347.  Minerals. —  Although  the  term  "land  "  includes 

what  is  above  and  below  the  surface  of  the  earth,  and  minerals 

1  Watts  v.  Friend.  10  B.  &  C.  446;  3  See  Morse  v.  Moore,  83  Me.  473,  22 
Pitkin  v.  Noyes,  48  N.  H.  294,  97  Am.  AtL  R.  362,  13  L.  R.  A.  224,  23  Am. 
Dec.  615.  2  Am.  R.  218.  See  also  St.  R.  783;  Murchie  v.  Cornell,  155 
Webster  v.  Zielly,  52  Barb.  (N.  Y.)  Mass.  60,  29  N.  E.  R.  207,  14  L.  R.  A. 
482;    Talmadge   v.   Lane,   41   N.   Y.  492. 

Supp.  413, 17  Misc.  731.    Contra,  Bow-        *  Higgins  v.  Kusterer,  41  Mich.  318, 
man  v.  Conn,  8  Ind.  58.  32  Am.  R.  160.    But  see  State  v.  Pott- 

2  See  Pitkin  v.  Noyes,  supra.  meyer,  33  Ind.  402,  5  Am.  R.  224. 

313 


§  348.]  LAW    OF    SALE.  [BOOK    I. 

lying  below  it  are  included  in  the  general  definition  of  land, 
nevertheless  when  these  ores  or  minerals  are  severed  from  their 
immediate  connection  with  the  earth,  as  they  must  necessarily 
be  in  mining,  they  cease  to  be  a  part  of  the  land  and  become 
chattels.1  Hence  a  contract  by  which  parties  are  to  work  quar- 
ries of  stone  or  mines  of  lead  upon  another's  land  is  not  a  con- 
tract for  the  sale  of  an  interest  in  land  when  the  contract  also 
provides  that  the  parties  are  to  divide  the  proceeds  from  the 
sale  of  stone  so  quarried  or  the  minerals  so  dug;2  for  the  par- 
ties who  work  the  quarries  or  mines  have  no  interest  in  any 
land,  but  only  in  the  substances  taken  by  them,  which  are  chat- 
tels. So  also  in  the  mining  States  on  the  Pacific  slope  the 
claim  to  mine  or  the  right  to  mine  is  a  chattel  interest,  while 
the  mine  itself  is  realty.3  The  reason  for  this  rule  is,  that 
the  right  rests  only  upon  possession  and  is  not  an  interest  in 
land. 

IV. 

Of  the  Pkice  or  Yalue. 

§348,  Operation  of  the  statute.— As  has  been  seen,  the 
English  statute  by  its  terms  applies  only  to  contracts  for  the 
sale  of  goods,  wares  and  merchandise  of  the  price  or  value  of 
ten  pounds  and  upwards;  and  this  provision  has  been  gen- 
erally adopted  in  the  American  States,  the  limit  fixed  being 
usually  $50,  but  varying  in  other  States  from  no  stated  amount 
whatever  up  to  $300. 

Consideration  has  also  been  given  to  the  various  methods  of 
fixing  the  price,  and  nothing  further  need  here  be  said  on  that 
subject. 

Where  the  parties  have  expressly  fixed  the  price,  or  where  it 
is  readily  ascertainable  from  the  data  or  standards  agreed 
upon,  the  question  whether  the  price  or  value  is  such  as  to 

i  Green  v.  Ashland  Iron  Co.,  62  Pa.  3  Hardenbergh  v.  Bacon,  33  Cal.  356; 
St.  97;  Kelley  v.  Ohio  Oil  Co.,  57  Ohio  Table  Mount,  etc.  Co.  v.  Stranahan, 
St.  317,  49  N.  E.  R.  399,  39  L.  R.  A.  765.    20  CaL  198. 

*  Treat  v.  Hiles,  68  Wis.  344. 

314 


CH.  VII.]      CONTRACT  UNDER  STATUTE  OF  FRAUDS. 


[§  349. 


make  the  statute  applicable  is  usually  one  of  little  difficulty. 
Certain  unusual  questions  may,  however,  present  themselves, 
to  which  some  attention  must  be  paid.     Thus  — 

§  349.  Sales  of  various  articles  aggregating  more  than 
the  limit. —  "Where  a  sale  is  contracted  for  of  various  articles, 
none  of  which  by  itself  is  of  the  price  or  value  fixed,  but  the 
aggregate  of  which  falls  within  the  provisions  of  the  statute, 
the  question  of  the  statute's  application  presents  some  diffi- 
culty. 

The  usual  rule  is  that  where  several  articles  are  sold  at  sub- 
stantially the  same  time  and  as  part  of  the  same  transaction, 
though  at  a  separate  price  for  each  article,  the  contract  will  be 
deemed  to  be  entire,  and  the  statute  will  apply  according  as 
the  aoffreixate  falls  within  or  without  the  limit.1     This  has 

DO         © 


1  The  leading  case  upon  this  sub- 
ject is  that  of  Baldey  v.  Parker.  2 
B.  &  C.  87.  There  the  plaintiffs  were 
linen-drapers,  and  the  defendant 
came  to  their  shop  and  bargained 
for  several  articles.  A  separate  price 
was  agreed  for  each,  and  no  one  arti- 
cle was  of  the  value  of  10/.  Some 
were  measured  in  his  presence,  some 
he  marked  with  a  pencil,  others  he 
assisted  in  cutting  from  a  large  bulk. 
He  then  desired  an  account  of  the 
whole  to  be  sent  to  his  house,  and 
went  away.  The  account  as  sent 
amounted  to  707.,  and  he  demanded 
a  discount  of  20/.  per  cent,  for  ready 
money,  which  was  refused.  The 
goods  were  then  sent  to  his  house, 
and  he  refused  to  take  them.  Held, 
that  this  was  one  entire  contract 
within  the  seventeenth  section.  All 
the  judges,  Abbott,  C.  J.,  Bayley, 
Holroyd  and  Best,  JJ.,  gave  separate 
opinions.  Abbott,  C.  J.,  said:  "  Look- 
ing at  the  whole  transaction,  I  am  of 
opinion  that  the  parties  must  be  con- 


sidered to  have  made  one  entire  con- 
tract for  the  whole  of  the  articles." 
Bayley,  J.,  said :  "  It  is  conceded  that 
on  the  same  day,  and  indeed  at  the 
same  meeting,  the  defendant  con- 
tracted with  the  plaintiffs  for  the 
purchase  of  goods  for  a  much  greater 
amount  than  107.  Had  the  entire 
value  been  set  upon  the  whole  goods 
together,  there  cannot  be  a  doubt  of 
its  being  a  contract  for  a  greater 
amount  than  10/.  within  the  seven- 
teenth section;  and  I  think  that  the 
circumstance  of  a  separate  price 
being  fixed  upon  each  article  makes 
no  such  difference  as  will  take  the 
case  out  of  the  operation  of  that  law.'' 
Holroyd,  J.,  said:  "This  was  all  one 
transaction,  though  composed  of  dif- 
ferent parts.  At  first  it  appears  to 
have  been  a  contract  for  goods  of 
less  value  than  10/.,  but  in  the  course 
of  the  dealing  it  grew  to  be  a  con- 
tract for  a  much  larger  amount.  At 
last,  therefore,  it  was  one  entire  con- 
tract within  the  meaning  and  mis- 


315 


350.] 


LAW  OF  SALE. 


[BOOK  I. 


been  held  to  be  so,  though  the  articles  were  to  be  delivered  at 
different  times;1  though  part  were  yet  to  be  manufactured;2 
and  though  the  various  articles  contracted  for  were  at  different 
places  and  the  bargain  as  to  each  was  made  where  each  article 
was,  but  all  on  the  same  day.3 

"  The  mere  fact  that  a  separate  price  is  agreed  upon  for  each 
article,"  it  is  said,  "or  even  that  each  article  is  laid  aside  as 
purchased,  makes  no  difference  so  long  as  the  different  pur- 
chases are  so  connected  in  time  or  place  or  in  the  conduct  of 
the  parties  that  the  whole  may  be  fairly  considered  one  entire 
transaction." 4 


350. 


There  may  be  cases,  however,  where  the  con- 


tract as  to  each  article  is  distinct,  and  then  the  statute  must 
be  applied  to  each  sale  separately.  Thus  it  has  been  held  that 
where  the  terms  and  responsibilities  differ  as  to  the  various 
articles,  the  contracts  are  distinct;5  and  so  they  are  where  dif- 


chief  of  the  statute  of  frauds,  it  being 
the  intention  of  that  statute  that 
tvhere  the  contract,  either  at  the  com- 
mencement or  at  the  conclusion, 
amounted  to  or  exceeded  the  value  of 
101.,  it  should  not  bind  unless  the 
requisites  there  mentioned  were  com- 
plied with.  The  danger  of  false  tes- 
timony is  quite  as  great  where  the 
bargain  is  ultimately  of  the  value  of 
10Z.  as  if  it  had  been  originally  of 
that  amount."  Best,  J.,  said:  '-What- 
ever this  might  have  been  at  the  be- 
ginning, it  was  clearly  at  the  close 
one  bargain  for  the  whole  of  the  arti- 
cles. The  account  was.  all  made  out 
together,  and  the  conversation  about 
discount  was  with  reference  to  the 
whole  account."  Baldey  v.  Parker 
is  followed  in  Allard  v.  Greasert,  61 
N.  Y.  1,  and  in  the  cases  cited  in  fol- 
lowing notes.  See  also  Cooke  v.  Mil- 
lard, 65  N.  Y.  352,  22  Am.  R.  619. 


i  Gault  v.  Brown,  48  N.  H.  183,  2 
Am.  R.  210. 

2  Scott  v.  Railway  Co.,  12  M.  &  W. 
33. 

3  Bigg  v.  Whisking,  14  C.  B.  195. 

4  Browne  on  the  Statute  of  Frauds, 
§314. 

5  Thus  where  there  was  a  sale  by 
auction  of  various  articles,  in  differ- 
ent amounts  and  at  different  prices, 
the  court,  after  referring  to  other 
cases  deemed  to  be  entire,  said :  "  But 
in  neither  of  these  cases  was  there 
any  difference  in  the  terms  of  sale  or 
of  warranty  by  the  seller  —  the  terms 
were  precisely  the  same,  and  the 
guaranty  the  same,  as  to  every  arti- 
cle sold.  In  the  case  before  us  the 
terms  and  responsibility  were  differ- 
ent, and  there  were  two  distinct  con- 
tracts; and  it  requires  no  reasoning 
nor  authority  to  show  that  two  dis- 
tinct contracts  are  not  one  contract." 


316 


CII.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS. 


[§  351. 


ferent  articles  are  bought  at  distinct  prices,  to  be  delivered  at 
different  times  and  paid  for  on  delivery.1 


§  351. 


Sales   of  various   articles   at   auction. —  Al- 


though the  contrary  has  been  held  in  the  case  of  sales  by  auc- 
tion of  distinct  parcels  of  land  at  separate  biddings  and  for  a 
several  price  for  each,2  in  regard  to  sales  of  various  articles  of 
personalty  by  auction  it  has  been  held  that  the  same  rule  ap- 
plies which  applies,  as  has  been  seen,  to  private  sales,  i.  e.,  that 
ordinarily  the  contract  is  to  be  regarded  as  entire  for  all  the 
articles,  even  though  the  articles  were  numerous  and  were 
struck  off  separately  at  separate  and  distinct  prices,3  and  that  it 
can  make  no  difference,  in  this  respect,  whether  the  auction  con- 
tinued one  day  or  several  days  upon  the  same  lot  of  goods  sold 
on  the  same  terms.4 


Barclay  v.  Tracy  (1842),  5  Watts  & 
Serg.  (Pa.)  45. 

1  Thus  where  there  was  negotiation 
for  the  sale  of  apples  and  a  crop  of 
barley,  the  apples  to  be  delivered  im- 
mediately, and  the  barley  as  soon  as 
a  car  could  be  procured  for  shipping 
it,  the  court  said:  "The  articles  sold 
were  of  different  characters:  they 
were  to  be  delivered  at  different 
times,  and  paid  for  respectively  on 
delivery.  The  contract  was  to  be 
executed  distributively,  as  was  said 
by  Judge  Der.io  in  respect  to  the 
hogs  sold  in  the  case  of  Tipton  v. 
Feitner,  20  N.  Y.  425.  The  case  seems 
to  me  precisely  within  the  rule  or 
exception  stated  by  Chancellor  Wal- 
worth in  Mills  v.  Hunt,  20  Wend. 
434."  Aldrich  v.  Pyatt  (1872),  64  Barb. 
(N.  Y.)  391. 

In  Irvine  v.  Stone,  6  Cush.  508, 
where  thex-e  was  an  oral  contract  for 
the  sale  of  a  large  quantity  of  coal, 
and  also  for  its  transportation,  it  was 
held  that  the  contract  being  void  as 


to  the  sale  was  void  also  as  to  the 
transportation:  but  in  Harman  v. 
Reeve,  25  L.  J.  Com.  PI.  257,  where 
the  contract  was  for  the  sale  and 
pasturing  of  a  mare  and  colt,  worth 
over  10/.,  the  court,  while  holding  the 
contract  entire,  said  that  a  recovery 
could  be  had  for  the  pasturing. 
.  -  Van  Eps  v.  Schenectady,  12  Johns. 
(N.  Y.)  436,  7  Am.  Dec.  330. 

A  fortiori  so  if  a  separate  memo- 
randum is  signed  for  each.  Wells  v. 
Day,  124  Mass.  32. 

3  Mills  v.  Hunt,  17  Wend.  (N.  Y.) 
336,  20  id.  431 ;  Coff  man  v.  Hampton, 
2  Watts  &  Serg.  (Pa.)  377,  37  Am. 
Dec.  511;  Jenness  v.  Wendell,  51 
N.  H.  63,  12  Am.  R.  48;  Tompkins  v. 
Haas,  2  Pa.  St.  74  (citing  also  1  Salk. 
65). 

The  remarks  in  Messer  v.  Wood- 
man, 22  N.  H.  172,  53  Am.  Dec.  241, 
to  the  contrary,  are  said,  in  Jenness 
v.  Wendell,  supra,  to  be  mere  dicta. 

*  Jenness  v.  Wendell,  51  N.  H.  63, 
12  Am.  R.  48. 


317 


§§  352,  353.]  law  of  sale.  [book  i. 

§  352,  How,  when  amount  uncertain  at  time  of  sale. — 

"Where,  at  the  time  the  contract  for  the  sale  is  entered  into, 
the  amount  is  uncertain,  as  where  the  exact  quantity,  weight 
or  price  is  yet  to  be  ascertained,  the  application  of  the  statute 
is  to  be  determined  by  the  result.1  Thus,  a  contract  to  sell  all 
the  broom-corn  which  might  be  raised  in  a  given  year  on  a 
certain  piece  of  ground  at  a  fixed  price  per  ton,2  or  to  sell  all 
the  flax-straw  at  a  given  price  per  ton  which  might  be  raised 
from  a  certain  quantity  of  seed,3  or  to  buy  all  the  mules  of  a 
given  strain  which  might  be  bred  during  a  certain  season  at  a 
fixed  price  per  head,4  is  within  the  statute  where  the  result 
shows  the  aggregate  to  exceed  the  statutory  limit,  though  in 
each  case  the  minimum  unit  was  below  the  limit. 

Where  no  price  at  all  is  expressly  agreed  upon,  Mr.  Browne 5 
expresses  the  opinion  that  the  parties,  agreeing  thus  tacitly 
upon  the  quantum  valet,  "do  contract  for  a  fair  price,  which 
is  capable  of  being  ascertained  by  proof,  and  thus  their  bargain 
is  brought  within  the  reach  of  the  statute,  where  that  price  is 
shown  to  exceed  the  amount  therein  fixed." 

Y. 

Of  Acceptance  and  Receipt. 

§  353.  What  the  statute  requires. —  The  English  statute 
declares,  and  the  American  statutes  are  substantially  the  same, 
that  no  contract  of  sale  of  the  kind  already  considered  shall  be 
good,  unless  — 

1.  The  buyer  shall  accept  part  of  the  goods  so  sold  and  act- 
ually receive  the  same ; 

2.  Or  give  'something  in  earnest  to  bind  the  bargain,  or  in 
part  payment; 

1  Watts  v.  Friend,  10  B.  &  C.  446;  3  Brown  v.  Sanborn,  supra. 
Carpenter  v.  Galloway  (1881),  73  Ind.  4  Carpenter  v.  Galloway,  supra. 
418;  Brown  v.  Sanborn  (1875),  21  Minn.  5  Browne    on    Statute  of  Frauds, 
402;  Bowman  v.  Conn  (1856),  8  Ind.  58.  §  313. 

2  Bowman  v.  Conn,  supra. 

318 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  354,  355. 

3.  Or  that  some  note  or  memorandum  in  writing  of  the  said 
bargain  be  made  and  signed  by  the  parties  to  be  charged  by 
such  contract,  or  their  agents  thereunto  lawfully  authorized. 

The  first  of  these  exceptions  must  now  be  considered.  And, 
at  the  outset,  it  must  be  noticed  that  — ■ 

§  354.  Delivery,  acceptance  and  actual  receipt  are  re- 
quired.—  The  statute  requires  two  things  of  the  buyer  which 
are  here  radically  different  in  their  nature,  neither  of  which  is 
the  equivalent  of  the  other,  and  neither  of  which  can  be  dis- 
pensed with,  i.  e.,  (1)  that  the  buyer  shall  accept  part  of  the 
goods  so  sold,  and  (2)  shall  actually  receive  the  same.  But  be- 
fore the  buyer  can  accept  and  actually  receive  the  goods,  it  is 
evident  that  there  must  be  a  delivery  of  them  by  the  seller. 
The  result,  therefore,  is  to  require  a  delivery  by  the  seller,  and 
an  acceptance  and  actual  receipt  by  the  buyer.  Each  one  of 
these  elements  may  exist  without  the  others,  but  the  absence  of 
any  one  of  them  will  invalidate  the  sale.     Thus  — 

1.  Of  Delivery  l)ij  the  Seller. 

§  355.  Necessity  of  delivery. —  There  must  be  a  delivery  of 
the  goods  by  the  seller  in  pursuance  of  the  contract  and  with 
the  intention  to  pass  the  title.1  This  delivery  must  also  be  the 
voluntary,  intentional  act  of  the  seller.  If,  therefore,  the  pur- 
chaser acquires  possession  of  the  goods  without  the  seller's  con- 
sent, by  mistake  or  fraud,2  or  by  legal  process,3  or  without  the 
seller's  knowledge,4  or  after  his  order  for  their  delivery  had 
been  countermanded,5  or  from  an  agent  whose  authority  was 
not  sufficient  or  had  expired,6  there  will  not  be  such  a  delivery 
as  the  statute  contemplates. 

1  Washington  Ice  Co.  v.  Webster,  3  Washington  Ice  Co.  v.  Webster, 
62  Me.  341,  16  Am.  R.  462;  Smith  v.     supra. 

Hudson,  6  B.  &  S.  431.  4  Young  v.  Blaisdell,  60  Me.  272. 

2  Brand  v.  Focht,  1  Abb.  App.  Dec.        5  Smith  v.  Hudson,  supra. 

(N.  Y.)  185.  6  Matthiessen,  etc.  Co.  v.  McMahon, 

38  N.  J.  L.  536. 
319 


§§  356-358.]  law  of  sale.  [book  r. 

§  356.  But  delivery  alone  not  enough. —  But,  obviously,  in- 
asmuch as  there  may  be  a  form  of  delivery  without  either  an 
acceptance  or  actual  receipt  by  the  purchaser,  delivery  alone  is 
not  enough.  Thus,  though  the  delivery  of  goods  to  a  common 
carrier,  consigned  to  the  buyer  for  transportation  to  him,  may 
be  a  sufficient  delivery  to  pass  the  title,  it  does  not  constitute 
such  an  acceptance  and  receipt  by  the  buyer  as  will  satisf}^  the 
statute,  even  though  the  carrier  were  one  designated  by  the 
buyer,  unless  the  latter  also  authorizes  the  carrier  to  accept.1 
The  requirements  of  the  statute  demand  action  on  the  part  of 
both  the  seller  and  the  buyer,  and  clearly,  therefore,  no  act  of  the 
seller  alone,  in  attempted  execution  of  the  contract,  can  suffice.2 
The  fuller  expositions  of  this  principle  will  be  found  in  the 
following  subdivisions. 

2.  Of  Acceptance  faj  the  Buyer. 

§357.  Acceptance  must  be  shown. —  Passing  now  to  the 
acts  required  of  the  buyer,  attention  will  be  paid  to  the  require- 
ment of  acceptance.  Not  only  must  there  be  a  delivery  by  the 
seller,  but  the  buyer  must  also  accept  a  part,  at  least,  of  the 
goods  sold.  As  will  be  at  once  seen,  there  may  be  both  a  de- 
livery and  a  receipt  of  the  goods  without  an  acceptance,  as 
where  the  buyer  has  the  right  to  examine  the  goods  after  their 
receipt  to  determine  whether  he  will  accept;  but  both  such  a 
delivery  and  receipt  will  not  suffice  without  acceptance. 

§358.  Must  be  voluntary  and  unconditional. —  The 

acceptance  of  the  goods  which  will  satisfy  the  requirement  of 
the  statute  must  be  the  voluntary,  unequivocal  and  uncondi- 
tional act  of  the  buyer  or  his  authorized  agent,  manifesting  his 

1  See  post,  §  365.  W.  R.  465;  Jamison  v.  Simon,  68  Cal. 

2  Caulkins  v.  Hellman,  47  N.  Y.  449,  17,  8  Pac.  R.  502;  Hansen  v.  Roter, 
7  Am.  R.  461;  Taylor  v.  Mueller,  30  64  Wis.  622,  25  N.  W.  R.  530;  Smith 
Minn.  343,  44  Am.  R.  199,  15  N.  W.  R.  v.  Brennan,  62  Mich.  349,  28  N.  W.  R. 
413;  Simmons  Hardware  Co.  v.  Mul-  892;  Ex  parte  Parker,  11  Neb.  309; 
len,  33  Minn.  195,  22  N.  W.  R.  294;  Powder  Live  Stock  Co.  v.  Lamb,  38 
Fontaine  v.  Bush,  40  Minn.  141,  41  N.  Neb.  339,  56  N.  W.  R.  1019. 

320 


CH.  Til.]  CONTRACT    UNDER    STATUTE   OF   FRAUDS. 


[§  35* 


intention  to  accept  the  goods  in  pursuance  of  the  contract, 
and  to  appropriate  them  to  himself  as  owner  by  virtue  of  the 
contract.1 


1  Hinchman  v.  Lincoln,  124  U.  S. 
38;  Jones  v.  Reynolds,  120  N.  Y.  213; 
Stone  v.  Browning,  51  N.  Y.  211,  68 
id.  598;  Gilman  v.  Hill,  36  N.  H.  311; 
Remick  v.  Sandford,  120  Mass.  309; 
Jones  v.  Mechanics"  Bank.  29  Md.  287, 
96  Am.  Dec.  533;  Hausman  v.  Nye, 
62  Ind.  485.  30  Am.  R  199;  Hershey 
Lumber  Go.  v.  St.  Paul  Sash  Co.,  66 
Minn.  449,  69  N.  W.  R.  215;  Schmidt 
v.  Thomas,  75  Wis.  529,  44  N.  W.  R. 
771;  Dauphiny  v.  Red  Poll  Creamery 
Co.  (1899),  123  Cal.  548,  56  Pac.  R.  451; 
Young  v.  Blaisdell.  60  Me.  272;  Din- 
nie  v.  Johnson  (1898).  8  N.  Dak.  153, 
77  N.  W.  R.  612. 

"  To  take  a  contract  out  of  the  stat- 
ute of  frauds  the  vendor  must  no1 
only  act  with  the  purpose  of  vesting 
the  right  of  possession  in  the  vendee, 
but  the  latter  must  actually  accept 
with  the  intention  of  taking  posses- 
sion as  owner."     Dierson  v.  Peters- 

meyer  (1899), Iowa,  — ,  80  N.  W. 

R.  389. 

In  Hinchman  v.  Lincoln,  supra, 
the  court  said:  "In  order  to  take  the 
contract  out  of  the  operation  of  the 
statute,  it  was  said  by  the  New  York 
court  of  appeals  in  Marsh  v.  Rouse, 
44  N.  Y.  643.  647,  that  there  must  be 
acts  '  of  such  a  character  as  to  un- 
equivocally place  the  property  within 
the  power  and  under  the  exclusive 
dominion  of  the  buyer 'as  absolute 
owner,  discharged  of  all  lien  for  the 
price.  This  is  adopted  in  the  text  of 
Benjamin  on  Sales,  £  179,  Bennett's 
4th  Am.  ed.,  as  the  language  of  the 
decisions  in  America,  In  Shindler 
v.  Houston,  1  N.  Y.  261,  49  Am.  Dec. 
316.  Gardiner,  J.,  adopts  the  language 
21  3 


of  the  court  in  Phillips  v.  Bistolli.  2 
B.  &  C.  511,  'that  to  satisfy  the  stat- 
ute there  must  be  a  delivery  by  the 
vendor  with  an  intention  of  vesting 
the  right  of  possession  in  the  vendee, 
and  there  must  be  an  actual  accept- 
ance by  the  latter  with  the  intent  of 
taking   possession  as  owner.'    And 
adds,  '  This,  I  apprehend,  is  the  cor- 
rect rule,  and  it  is  obvious  that  it 
can  only  be  satisfied  by  something 
done  subsequent  to  the  sale  unequiv- 
ocally indicating  the  mutual  inten- 
tions of  the  parties.    Mere  words  are 
not  sufficient.     Bailey  v.  Ogden,  3 
Johns.  399,  3  Am.  Dec.  509.    ...    In 
a  word,  the  statute  of  fraudulent  con- 
veyances and  contracts  pronounced 
these  agreements,  when  made,  void, 
unless  the  buyer  should  "  accept  and 
receive  some  part  of  the  goods."   The 
language    is    unequivocal    and    de- 
mands the  action  of  both  parties,  for 
acceptance    implies    delivery,    and 
there  can  be  no  complete  delivery 
without  acceptance.'    Page  265.     In 
the  same  case  Wright,  J.,  said:  'The 
acts  of  the  parties  must  be  of  such  a 
character  as  to  unequivocally  place 
the  property  within  the  power  and 
under  the  exclusive  dominion  of  the 
buyer.     This  is  the  doctrine  of  those 
cases  that  have  carried  the  principle 
of  constructive  delivery  to  the  ut- 
most limit.     .    .    .     Where  the  acts 
of  the  buyer  are  equivocal,  and  do 
not  lead  irresistibly  to  the  conclusion 
that  there  has  been  a  transfer  and 
acceptance   of   the   possession,  the 
cases  qualify  the  inferences  to  be 
drawn  from  them,  and  hold  the  con- 
tract to  be  within  the  statute.    .    .    . 
21 


§§  359,  3G0.]  LAW  OF  SALE.  LB00K  r« 

§  359.  No  acceptance  while  awaiting  test  or  oppor- 
tunity for  examination. —  Until,  therefore,  the  buyer  has  had 
an  opportunity  to  accept,  as  where  the  goods  are  a  part  of  a 
larger  mass  from  which  they  have  not  yet  been  separated,1  or 
while  the  goods  are  not  yet  ready  for  acceptance,  as  where  the 
vendor  is  to  do  some  act  in  reference  to  them  to  put  them  into 
the  agreed  condition,2  or  while  the  goods  are  awaiting  or  being 
subjected  to  examination  to  ascertain  whether  they  will  be 
accepted,3  there  can,  of  course,  be  no  such  acceptance  as  is 
here  required. 

§360.  Acceptance  may  be  implied. —  The  acceptance  by 
the  buyer  need  not  be  express,  but  may  be  implied  from  his 
acts.  As  is  said  in  a  late  case : 4  "  The  act  of  acceptance  is 
something  over  and  beyond  the  agreement  of  which  it  is  a 
part  performance,  and  which  it  assumes  as  already  existing. 
It  is  a  fact  to  be  proven  as  are  other  facts.  Acts  of  ownership 
constitute  strong  evidence  of  acceptance.5  So,  too,  does  a  long 
and  unreasonable  delay  in  returning  goods.6  If  a  vendee  does 
any  act  with  reference  to  the  thing  sold,  of  wrong  if  not  the 
owner,  or  of  right  if  he  is  the  owner,  it  is  evidence  that  he  has 
accepted  it.7  The  rule  may  be  broadly  stated  that  any  act 
from  which  it  may  be  inferred  that  the  buyer  has  taken  pos- 
session as  owner  presents  a  question  for  the  jury  to  determine 
whether  the  act  was  done  with  intent  to  accept." 8 

I  think  I  may  affirm  with  safety  that  3  Stone  v.  Browning,  51  N.  Y.  211, 

the  doctrine  is  now  clearly  settled  68  id.  598;  Rernick  v.  Sandford,  120 

that  there  must  not  only  be  a  deliv-  Mass.  809;  Mechanical  Boiler  Cleaner 

ery  by  the  seller,  but  an  ultimate  Co.  v.  Kellner  (1899),  62  N.  J.  L.  544, 

acceptance  of  the  possession  of  the  43  Atl.  R.  599. 

goods  by  the  buyer,  and  that  this  4  Jones  v.  Reynolds,  120  N.  Y.  213. 

delivery  and  acceptance  can  only  be  5  Reed  on  Statute  of  Frauds,  §  261. 

evinced   by  unequivocal  acts  inde-  6  Citing  Bushell  v.  Wheeler,  15  Q. 

pendent  of  the   proof  of  the    con-  B.   442;   Treadwell  v.    Reynolds,   39 

tract.'"  Conn.  31.    To  same  effect:  Chambers 

i  Knight  v.  Mann,  118  Mass.  143;  v.  Lancaster  (1899),  160  N.  Y.  342,  54 

Terney  v.  Doten,  70  Cal.  399.  N.  E.  R.  707. 

2Gilman  v.  Hill,  36  N.  H.  311;  Out-  '  Citing  Parker  v.  Wallis,  5  El.  & 

water  v.  Dodge,  7  Cow.  (N.  Y.)  85;  Bl.  21. 

Wegg  v.  Drake,  16  U.  C.  Q.  B.  252.  8  Citing  Baines  v.  Jevons,  7  C.  &  P. 

322 


OH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  3C1,  362. 

§  361.  .  Other  illustrations  of  tlie  same  rule  are  found 

in  such  acts  of  ownership  as  selling,  offering  to  sell,  or  pledg- 
ing the  goods,1  directing  the  goods,  e.  (/.,  silverware,  to  be  en- 
graved with  the  buyer's  name;2  ordering  alterations  to  be 
made  in  a  carriage  and  using  it ; 3  cutting  down  a  part  of  tim- 
ber sold  and  reselling  a  portion  of  it,4  or  selecting  and  mark- 
ing the  trees ; 5  taking  possession  of  wood  sold  and  hiring  it 
repiled;6  expressing  satisfaction  with  an  article  delivered  and 
asking  for  other  things  which  are  to  go  with  it;7  trying  on  a 
dress  made  and  saying  one  will  take  it,  though  it  is  then  left 
with  the  dressmaker  temporarily  for  the  buyer's  convenience;8 
sending  one's  servants  to  take  possession  of  and  bale  a  stack 
of  hay  bought,  though  the  whole  stack  was  accidentally  burned 
about  twenty  minutes  after  they  began;9  expressing  satisfac- 
tion with  the  deposit  of  the  goods  for  him  in  a  warehouse  and 
making  a  partial  payment  of  the  price,  though  the  buyer  had 
not  yet  examined  them.10 

§  362.  When  acceptance  must  occur, —  The  acceptance  and 
receipt  need  not  take  place  at  the  time  the  contract  of  sale  is 
made,  but  may  occur  subsequently.11  Neither  is  it  necessary 
that  the  acceptance  and  the  receipt  should  be  contemporane- 

288;   Pinkham  v.  Mattox,  53  N.  H.  3  Beaumont  v.  Brengeri,  5  Com.  B. 

600;  Gray  v.  Davis,  10  N.  Y.  285.   See  301. 

also  Stockwell  v.  Baird,  15  Del.  420.  4  Marshall  v.  Green,  L.  R.  1  C.  P.  D. 

31  Atl.  R.  811.  35. 

i  Chaplin  v.   Rogers,  1  East,  192;  ^Byassee  v.  Reese,  4  Mete.  (Ky.) 

Morton  v.  Tibbett.  15  Q.  B.  428;  Phil-  372,  83  Am.  Dec.  481. 

lips  v.  Ocmulgee  Mills.  55  Ga.  633;  6  Richards  v.  Burroughs,  62  Mich. 

Taylor  v.  Mueller,  30  Minn.  343,  44  117. 

Am.  R.   199;  Roman  v.  Bressler,  49  ' Schmidt  v.  Thomas,  75  Wis.  529. 

Neb.  368,  49  N.  W.  R.  368.    The  pay-  8  Galvin  v.  Mackenzie,  21  Oreg.  184, 

ing  of  freight  on  goods,  opening  the  27  Pac.  R.  1039. 

boxes  and  removing  a  portion  of  the  9  Corbett  v.  Wolford,  84  Md.  426,  35 

■contents,  and  giving  a  chattel  mort-  AtL  R.  1088. 

gage  upon  them,  constitute  such  acts  10  Shaw  Lumber  Co.  v.  Manville,  — 

of  ownership  as  will  imply  accept-  Idaho,  — ,  39  Pac.  R.  559. 

ance.     Wyler  v.  Rothschild,  53  Neb.  "Amson   v.   Dreher,  35  Wis.  615; 

566,  74  N.  W.  R.  41.  McKnight  v.  Dunlop,  5  N.  Y.  537,  55 

2  Walker  v.  Boulton,  3  U.  C.  Q.  B.  Am.  Dec.  370;  Gault  v.  Brown,  48 

(O.  S.)  202.  N.   H.    183,  2   Am.  R.  210;  Bush  v. 

323 


§§363-365.]  law  or  sale.  [book  I. 

ous,  but  the  goods  may  be  accepted  before  they  are  received,, 
or  received  before  they  are  accepted.1 

§  363.  Who  may  accept  — Agent.— The  acceptance  may  be 
not  only  by  the  buyer  himself,  but  by  an  agent  with  sufficient 
authority.2  This  authority  may  be  conferred  in  the  same  man- 
ner as  in  other  cases,  and  may  be  established  either  by  proof,  a 
prior  authorization  or  a  subsequent  ratification.3  It  cannot, 
however,  depend  upon  the  same  parol  agreement  which  is 
sought  to  be  rendered  valid  by  the  acceptance.4 

The  authority  relied  upon  must,  moreover,  be  adequate  to  the 
act  to  be  established.  Thus  an  authority  to  receive  the  goods 
will  not,  of  itself,  suffice  to  warrant  an  acceptance  of  them,  and 
vice  versa.5 

§  364.  Tenants  in  common.— A  delivery  to  and  an  ac- 
ceptance by  tenants  in  common  will,  it  is  held,  be  sufficient  to 
support  a  sale  of  the  goods  to  one  of  them.6 

|  365.  Carrier. —  A  carrier  employed  to  transport  the 

goods,  even  though  designated  by  the  buyer,  is  not  thereby  au- 
thorized to  accept  the  goods,  though  when  so  designated  he  is, 
of  course,  authorized  to  receive  them.  To  authorize  him  to  ac- 
cept, some  other  authorization  than  his  mere  employment  as  a 
carrier  is  necessary.7 

Holmes,  53  Me.  417;  Marsh  v.  Hyde,    Oneida  Co.,  76  Wis.  56,  45  N.  W.  R. 

3  Gray  (Mass.),  331 ;  Ortloff  v.  Klitzke,     21. 

43  Minn.  154,  44  N.  W.  R.  1085.  3  See  Mechem  on  Agency,  §  81. 

i  Cross  v.  0"Donnell,  44  N.  Y.  661,        4  Hawley  v.  Keeler,  53  N.  Y.  114. 

4  Am.  R.  721;  Pinkham  v.  Mattox,        5 Taylor,  Ev.,  §  1045. 

53  N.  H.  600;  Knight  v.  Mann,  118  6  Wilkinson 's  Adm'r  v.  Wilkinson,. 

Mass.  143;  Garfield  v.  Paris,  96  U.  S.  61  Vt.  409. 

557,  1  in  Johnson  v.  Cuttle,  105  Mass. 

2 Snow  v.  Warner,  10  Mete.  (Mass.)  447,   7   Am.   R.   545,   Gray,  J.,  said: 

132,  43  Am.  Dec.  417;  Jones  v.  Me-  "Mere  deliveryis  not  sufficient;  there 

chanics'  Bank,  29  Md.  287,  96  Am.  must  be  unequivocal  proof  of  an  ac- 

Dec.  533;   Gaff  v.  Homeyer,  59  Mo.  ceptance  and  receipt  by  him.     Such 

345;  Wilcox  Silver  Plate  Co.  v.  Green,  acceptance  and  receipt  may  indeed 

72  N.  Y.  17;  Vanderbilt  v.  Central  R.  be  through  an  authorized  agent.  But 

R.  Co.,  43  N.  J.  Eq.  669;  Alexander  v.  a  common  carrier  (whether  selected 

324 


en.  til]  contract  under  statute  of  frauds. 


[§  366. 


§  366. 


Administrator. —  A  special  administrator  can- 


not, it  is  held,  accept  goods  in  pursuance  of  a  parol  contract 
made  by  bis  intestate.  Said  the  court:  "While  an  adminis- 
trator or  executor  may  be  authorized,  and  under  some  circum- 
stances compelled,  to  carry  out  the  terms  and  provisions  of  a 
valid  contract  entered  into  by  the  deceased,  he  cannot  make 
any  contracts  for  him  or  ratify  his  void  transactions." J 


by  seller  or  by  the  buyer),  to  whom 
the  goods  are  intrusted  without  ex- 
press instructions  to  do  anything  but 
to  carry  and  deliver  them  to  the 
buyer,  is  no  more  than  an  agent  to 
carry  and  deliver  the  goods,  and  has 
no  implied  authority  to  do  the  acts 
required  to  constitute  an  acceptance 
and  receipt  on  the  part  of  the  buyer, 
and  to  take  the  case  out  of  the  statute 
of  frauds;"  citing  Snow  v.  Warner, 
10  Mete  (Mass.)  132,  43  Am.  Dec.  417; 
Frostburg  Mining  Co.  v.  New  Eng- 
land Glass  Co.,  9  Cush.  (Mass.)  115;' 
Boardman  v.  Spooner,  13  Allen 
(Mass.).  353, 90  Am.  Dec.  196;  Quintard 
v.  Bacon,  99  Mass.  185;  Norman  v. 
Phillips.  14  M.  &  W.  277;  Nicholson 
v.  Bower.  1  El.  &  El.  172. 

To  same  effect:  Allard  v.  Greasert, 
61  N.  Y.  1 ;  Billin  v.  Henkel.  9  Colo. 
394;  Simmons  Hardware  Co.  v.  Mul- 
len, 33  Minn.  195;  Taylor  v.  Mueller, 
30  Minn.  343,  44  Am.  R.  199:  Atherton 
v.  Newhall,  123  Mass.  141,  25  Am.  R. 
47;  Hudson  Furniture  Co.  v.  Freed 
Furn.  Co.,  10  Utah,  31,  36  Pac.  R.  132; 
Waite  v.  McKelvy,  71  Minn.  167,  73 
N.  W.  R.  727;  Salomon  v.  King  (1899), 
m  N.  J.  L.  39.    42  AtL  R.  745. 

In  Iowa,  where  acceptance  is  not 
required  by  the  statute,  a  delivery  to 
the  carrier  is  enough.  Bullock  v. 
Tschergi,  13  Fed.  R.  345.  Many  cases 
hold  that  a  delivery  to  a  carrier,  not 
designated    by    the    buyer,    is    not 

3 


enough,  but  the  facts  did  not  require 
a  ruling  as  to  the  effect  if  the  carrier 
had  been  designated  by  the  buyer. 
Hausman  v.  Nye,  62  Ind.  485,  30  Am. 
R.  199;  Keiwert  v.  Meyer,  62  Ind. 
587,  30  Am.  R.  206;  Webber  v.  Howe, 
30  Mich.  150;  24  Am.  R.  590;  Grimes 
v.  Van  Vechten,  20  Mich.  410;  Rinds- 
kopf  v.  De  Ruyter.  39  Mich.  1;  Cross 
v.  O'Donnell,  44  N.  Y.  661,  4  Am.  R. 
721 ;  Maxwell  v.  Brown,  39  Me.  98, 63 
Am.  Dec.  605;  Fontaine  v.  Bush,  40 
Minn.  141,  12  Am.  St.  R.  722:  Sim- 
mons Hardware  Co.  v.  Mullen,  33 
Minn.  195;  Leggett  &  Meyer  Co.  v. 
Collier,  89  Iowa,  144,  56  N.  W.  R.  417. 

In  Vermont  a  delivery  to  a  carrier 
named  by  the  buyer  is  held  a  suffi- 
cient acceptance,  though  the  court 
say:  "But  this  will  depend  upon 
the  intention  of  the  parties,  to  be 
gathered  from  the  circumstances  of 
each  case  to  some  extent.''  Spencer 
v.  Hale,  30  Vt.  314,  73  Am.  Dec.  309; 
Strong  v.  Dodds,  47  Vt.  348. 

But  where  the  goods  were  to  be 
delivered  by  the  sellers  and  the  buyer 
was  to  receive  them  from  the  carrier 
and  pay  the  freight  on  the  sellers' 
account,  it  was  held  that  this  nega- 
tived the  idea  that  the  carrier  was 
the  buyer's  agent  to  accept.  Agnew 
v.  Dumas,  64  Vt.  147,  23  Atl.  R.  634. 

1  Smith  v.  Brennan,  62  Mich.  349,  4 
Am.  St.  R.  867. 


§§  307,  368.]  LAW  OF  SALE.  [book  I. 

§367.    That  buyer  ought  to  accept,  not  enough.— The 

question  here  involved  is  not  whether  the  buyer  ought,  in  point 
of  morals  or  good  faith,  to  accept  the  goods,  but  whether  he 
has,  in  fact,  accepted  them.  He  may  refuse  for  entirely  frivo- 
lous or  untenable  reasons  or  for  no  reasons  at  all,  but  so  long  as 
he  does  not  accept,  for  whatsoever  reasons,  he  is  not  bound.1 
There  are  occasions  when  it  is  important  to  ascertain  whether 
the  goods  are  such  as  the  buyer  ought  to  accept,  but  this  is  not 
one  of  them. 

§  368.  Whether  acceptance  must  be  final  and  conclusive. — 

Whether  there  may  be  such  an  acceptance  as  will  satisfy  the 
statute  of  frauds  and  yet  leave  it  open  to  the  buyer  to  after- 
wards reject  the  goods  as  not  being  such  in  quantity  and  qual- 
ity as  the  contract  calls  for,  is  a  question  upon  which  the 
authorities  are  not  in  harmony.  In  the  leading  English  case2 
there  was  a  sale  of  wheat  by  sample,  and  the  purchaser,  with- 
out examining  the  bulk,  directed  its  delivery  to  a  carrier  and 
sold  it  by  the  same  sample  to  a  third  person,  who  rejected  it  as 
not  in  conformity  to  the  sample.  The  first  purchaser  there- 
upon also  repudiated  his  purchase.  In  an  action  by  the  orig- 
inal seller  against  the  first  purchaser,  Lord  Campbell  held  that 
there  may  be  an  acceptance  and  receipt  within  the  meaning  of 
the  statute,  "  without  the  buyer's  having  examined  the  goods  or 
done  anything  to  preclude  him  from  contending  that  they  do 
not  correspond  Avith  the  contract.  The  acceptance  to  let  in 
parol  evidence  of  the  contract  appears  to  us  to  be  a  different 
acceptance  from  that  which  affords  conclusive  evidence  of  the 
contract's  having  been  fulfilled."  The  court  therefore  held 
"  that,  although  the  defendant  had  done  nothing  which  would 
have  precluded  him  from  objecting  that  the  wheat  delivered 
to  the  carrier  was  not  according  to  the  contract,  there  was  evi- 

1  Wood  on  Statute  of  Frauds,  §  305;  A  few  cases  lay  down  a  contrary 

Gibbs  v.Benjamin, 45  Vt.  124;  Knight  rule.     See   Meyer    v.    Thompson,    16 

v.  Mann,  118  Mass.   143;    Hewes  v.  Oreg.  194,  citing  Smith  v.  Stoller,  26 

Jordan,  39  Md.  472,  17  Am.  R.  578;  Wis.  671,  and  Bacon  v.  Eccles,  43  id. 

Stone  v.  Browning,  51  N.  Y.  211,  68  227. 

id.  598.  2  Morton  v.  Tibbett,  15  Q.  B.  428. 

326 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS. 


[§  369. 


dence  to  justify  the  jury  in  finding  that  the  defendant  accepted 
and  received  it." 

§  369.  .  This  doctrine,  though  meeting  with  some  dis- 
approval in  England,1  seems  finally  to  be  established  there,2 
and  has  been  approved  by  several  of  the  courts  in  the  United 
States.3     In  others  it  has  been  approved  only  with  modifica- 


1  See  Hunt  v.  Hecht,  8  Exch.  814; 
Coombs  v.  Railway  Co.,  3  H.  &  N. 
510;  Castle  v.  Sworder,  6  H.  &  N.  828; 
Smith  v.  Hudson,  6  B.  &  S.  431. 

2  Kibble  v.  Gough,  38  L.  T.  (N.  S.) 
204;  Rickard  v.  Moore,  38  L.  T.  (N.  S.) 
841. 

»  Remick  v.  Sandford,  120  Mass.  309 ; 
Strong  v.  Dodds,  47  Vt.  348;  Smith  v. 
Stoller,  26  Wis.  671;  Garfield  y.  Paris, 
96  U.  S.  557:  Hinchman  v.  Lincoln, 
124  U.  S.  38.  See  also  Meyer  v.  Thomp- 
son, 16  Oreg.  194,  203;  Taylor  v.  Muel- 
ler. 30  Minn.  343,  44  Am.  R.  199. 

In  Remick  v.  Sandford,  120  Mass. 
309,  the  court  said:  ''There  may  un- 
doubtedly be  an  acceptance,  which 
will  not  afford  conclusive  evidence 
that  the  contract  has  been  fulfilled 
and  its  terms  complied  with,  and 
which  will  yet  satisfy  the  statute 
and  let  in  evidence  of  those  terms, 
which  otherwise  could  only  be  proved 
in  writing.  If  the  buyer  accepts  the 
goods  as  those  which  he  purchased, 
he  may  afterwards  reject  them  if 
they  are  not  what  they  were  war- 
ranted to  be,  but  the  statute  is  satis- 
fied. But,  while  such  an  acceptance 
satisfies  the  statute,  in  order  to  have 
that  effect  it  must  be  by  some  une- 
quivocal act  done  on  the  part  of  the 
buyer,  with  the  intent  to  take  pos- 
session of  the  goods  as  owner.  The 
sale  must  be  perfected,  and  this  is  to 
be  shown,  not  by  proof  of  a  change 
of  possession  only,  but  of  such  change 
with  such  intent.    When  it  is  thus 


definitely  established  that  the  rela- 
tion of  vendor  and  vendee  exists, 
written  evidence  of  the  contract  is 
dispensed  with,  although  the  buyer, 
when  the  sale  is  with  warranty,  may 
still  retain  his  right  to  reject  the 
goods  if  they  do  not  correspond  with 
the  warranty.  Morton  v.  Tibbett,  15 
Q.  B.  428;  Johnson  v.  Cuttle,  105  Mass. 
447;  Knight  v.  Mann,  118  Mass.  143, 
and  cases  cited. 

"That  there  has  been  an  accept- 
ance of  this  character,  or  that  the 
buyer  has  conducted  himself,  in  re- 
gard to  the  goods,  as  owner  (as  by  a 
resale,  which  would  deprive  him  of 
the  option  to  take  or  decline  them, 
and  which  is  of  itself  an  acceptance), 
is  to  be  proved  by  the  party  setting 
up  the  contract.  It  cannot  be  in- 
ferred, as  matter  of  law,  merely  from 
the  circumstance  that  the  goods  have 
come  into  the  possession  of  the  buyer. 
All  that  the  ruling  gives  to  the  de- 
fendants is  the  right  to  reject  the 
goods  if  they  do  not  correspond  to 
the  sample,  which  they  would  have 
had  at  the  common  law,  even  if  there 
had  been  a  written  memorandum. 
But  they  had  more  than  this,  as  there 
was  no  such  memorandum;  they  had 
a  right  arbitrarily  to  refuse  the  ac- 
ceptance of  the  goods,  unless  they 
did  or  had  done  some  act  in  relation 
to  them  consistent  only  with  their 
own  ownership,  and  inconsistent 
with  that  of  the  seller.  The  circum- 
stances under  which  they  received 


327 


§  369.]  LAW    OF    SALE.  [BOOK   I. 

tions,  and  in  some  it  is  not  countenanced  at  all.  Thus,  in 
Maryland,  it  is  said:  "Xow,  it  may  be  readily  conceded  that 
the  question  whether  there  has  been,  in  any  particular  case, 
such  acceptance  and  actual  receipt  of  a  part  of  the  goods  as 
will  bind  the  contract,  may  be  quite  different  and  distinct  from 
that  as  to  whether  the  contract  has  been  fulfilled  in  respect  to 
quantity  and  quality  of  the  residue  of  the  goods,  where  the 
vendee  has  had  no  opportunity  of  examining  the  goods  that 
may  be  offered  in  fulfillment  of  the  contract,  and  where  he  has 
done  nothing  to  preclude  himself  from  the  exercise  of  the  right 
to  object  that  they  do  not  correspond  with  those  actually  re- 
ceived by  him.  The  effect  of  the  acceptance  and  actual  receipt 
of  part  of  the  goods,  however  small,  is  to  prove  the  contract  of 
sale,  and  it  is  not  inconsistent  with  this  that  the  vendee  should 
have  the  right,  with  respect  to  the  residue  of  the  goods,  when 
offered  in  fulfillment  of  the  contract,  to  object  that  they  are 
not  such  in  quantity  and  quality  as  the  contract  requires;  and 
*in  such  case  the  question  in  dispute  can  only  be  determined  by 

the  goods,  and  the  manner  in  which  tract  must  be  in  writing,  or  there 

they  acted    in    reference  to  them,  must  be  some  note  or  memorandum 

were  to  be  considered  as  evidence,  of  the  same  to  be  subscribed  by  the 

These    might    show    that    they   re-  party  to  be  charged;  but  the  same 

ceived  the  goods  with  the  intent  to  statute  concedes  that  the  party  be- 

accept  them,  as  being  the  goods  they  comes  liable  for  the  whole  amount 

purchased,  and  as   the    owners    of  of  the  goods,  if  he  accepts  and  re- 

them,  but  they  might  also  show  that  ceives  part  of  the  same,  or  the  evi- 

they  received  them  only  for  the  pur-  dences,   or  some  of  them,  of  such 

pose  of  examination.     A  receipt  for  things  in  action ;  and  the  authorities 

such  a  purpose  is  not  inconsistent  agree    that  where  the    question   is 

with  their  continuing  still  the  prop-  whether  the  contract  has  been  ful- 

erty  of  the  seller.     Hunt  v.  Hecht,  8  filled,  it  is  sufficient  to  show  an  ac- 

Exch.  814;  Curtis  v.  Pugh,  10  Q.  B.  ceptance    and    actual  receipt  of  a 

111."  part,   however  small,  of  the  thing 

In  Garfield  v.  Paris,  96  U.  S.  557,  sold,  in  order  that  the  contract  may 

the  court  said:  "Authorities  almost  be  held  to  be  good,  even  though  it 

numberless  hold  that  there  is  a  broad  does  not  preclude  the  purchaser  from 

distinction   between  the   principles  refusing  to  accept  the  residue  of  the 

applicable  to  the  formation  of  the  goods,  if  it  clearly  appears  that  they 

contract  and  those  applicable  to  its  do    not  conform    to    the    contract, 

performance,   which    appears    with  Benjamin  on  Sales  (2d  ed.);  Hinde  v. 

sufficient  clearness    from   the    Ian-  Whitehouse,  7  East,  558;  Morton  v. 

guage  of  the  statute,— such  a  con-  Tibbett,  15  Ad.  &  E.  (N.  S.)  428." 

328 


CH.  Til.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  370-372.    • 

the  aid  of  parol  eTidence.  But  in  all  cases  where  the  goods 
bargained  for  have  been  accepted  and  actually  received  by  the 
vendee,  he  is  thereby  precluded,  in  the  absence  of  fraud,  from. 
objecting  that  they  do  not  correspond  with  the  contract.  Any 
other  construction  would  certainly  tend  to  let  in  all  the  evils 
that  were  intended  to  be  excluded  by  the  particular  provision 
of  the  statute." l 

g  370.  .  In  a  leading  case2  in  New  York,  the  court  say 

that  "  the  best  considered  cases  hold  that  there  must  be  a  vest- 
ing of  the  possession  of  the  goods  in  the  vendee,  as  absolute 
owner,  discharged  of  all  lien  for  the  price  on  the  part  of  the 
vendor,  and  an  ultimate  acceptance  and  receiving  of  the  prop- 
erty by  the  vendee,  so  unequivocal  that  he  shall  haTe  precluded 
himself  from  taking  any  objection  to  the  quantum  or  quality 
of  the  goods  sold." 

§  371.  Acceptance  of  unfinished  articles.— Akin  to# 

the  subject  of  the  last  section  is  the  subject  of  the  acceptance 
before  completion  of  articles  to  be  manufactured  or  fitted  for 
deliTery.  In  one  case 3  the  court  said :  "  There  could  be  no 
acceptance  without  the  assent  of  the  buyers  to  the  articles  in 
their  changed  condition,  and  as  adapted  to  their  use."  And 
clearly  in  such  cases  acceptance  will  not  be  implied,  except 
from  unequiTOcal  acts,  until  the  article  is  completed  and  ready 
for  delivery.4 

§  372.  The  burden  of  proof.— The  burden  of  proving  that 
there  was  such  an  acceptance  as  will  take  the  case  out  of  the 

iHewes  v.  Jordan,  39  Md.  472,  17        4Thus,  in  Maberley  v.  Sheppard, 

Am.  R.  578.  10  Bing.  99,  it  was  held  that  there 

2Shindler  v.  Houston,  1  N.  Y.  261,  was  no  acceptance  to  be   inferred 

49  Am.  Dec.  316,  citing  Chitty  on  from  the  fact  that  the  defendant, 

Contracts,  390;  Hilliard  on  Sales,  135;  who  had  ordered  a  wagon  made  for 

Maberley  v.  Sheppard,  10  Bing.  99;  him  by  the  plaintiff,  furnished  the 

Acebal  v.  Levy,  id.  384.  iron  work,  and,  during  the  progress 

3  Cooke  v.  Millard,  65  N.  Y.  352,  of  the  work,  sent  a  man  to  help  the 

22  Am.  E.  619,  citing,  as  analogous,  plaintiff  put  it  on,  and  also  bought  a 

Bog  Lead  Co.  v.  Montague,  10  C.  B.  tilt  and  sent  it  to  the  plaintiff  to  be 

(N.  S.)  481.  put  on  the  wagon. 

329 


§§  373-375.]  law  of  sale.  [book  i. 

statute  of  frauds  rests  upon  the  party  alleging  it.1  It  cannot 
be  inferred  as  a  matter  of  law  merely  from  the  fact  that  the 
goods  have  come  into  the  possession  of  the  buyer. 

§  373.  Question  of  acceptance  is  for  the  jury. —  Where  the 
facts  are  in  dispute,  the  question  whether  or  not  they  indicate 
an  acceptance  is  for  the  jury  to  determine.2  But  where  the 
facts  in  relation  to  the  matter  are  not  in  dispute,  it  belongs  to 
the  court  to  determine  their  legal  effect.3  "  And  so  it  is  for 
the  court  to  withhold  the  facts  from  the  jury  when  they  are 
not  such  as  can  in  law  warrant  finding  an  acceptance,  and  this 
includes  cases  where,  though  the  court  might  admit  that  there 
was  a  scintilla  of  evidence  tending  to  show  an  acceptance,  they 
would  still  feel  bound  to  set  aside  a  verdict  finding  an  accept- 
ance on  that  evidence."4 

§  374.  Right  of  seller  to  retract  before  acceptance. —  The 

acceptance  must  be  with  the  consent  of  the  seller,  by  virtue  of 
the  contract  of  sale  and  while  that  contract  is  still  in  force.5 
Hence  if,  before  the  buyer  accepts,  the  seller  elects  to  repudiate 
the  agreement  and  withdraw  his  offer  of  sale,  he  may  do  so; 
and  he  may  do  this,  though  there  has  been  an  actual  receipt  of 
the  goods.6 

3.  Of  Receipt  ~by  the  Buyer. 

§  375.  Necessity  of  receipt, —  As  has  been  seen,  the  statute 
requires  that  the  buyer  shall  not  only  accept  but  shall  also 

iRemick  v.   Sandford,   120  Mass.  89  Wis.  86,  61  N.  W.  R.  307;  Galvin 

309.  v.  Mackenzie,  21  Oreg.  184,  27  Pac.  R. 

2  Hinchman  v.  Lincoln,  124  U.  S.  1039. 

38;  Garfield  v.   Paris,  96  U.  S.  557  3 Hinchman  v.  Lincoln,  124  U.S. 

[citing  Bushel  v.  Wheeler,  15  Ad.  &  38;    Shepherd  v.  Pressey,  32  N.  H. 

E.  (N.  S.)  442;  Parker  v.  Wallis,  5  El.  49,  56. 

&  Bl.  21 ;  Lilly  white  v.  Devereux,  15  4  Hinchman  v.  Lincoln,  124  U.  S.  38 

M.  &  W.  285;  Simmonds  v.  Humble,  [citing  Denny  v.  Williams,  5  Allen 

13  C.  B.  (N.  S.)  258]:  Borrowscale  v.  (Mass.),  1,  5;  Howard  v.  Borden,  13 

Bosworth,  99  Mass.  378,  381;  Wart-  Allen,  299;  Pinkham  v.  Mattox,  53 

man  v.  Breed,  117  Mass.  18;  Smith  N.  H.  600,  604J. 

v.   Stoller,  26  Wis.  671;   Amson   v.  5  See  ante,  §  355. 

Dreher,  35  Wis.  615;  Becker  v.  Holm,  « Smith  v.  Hudson,  6  B.  &  S.  431. 

330 


CU.  VII.]  CONTRACT    UNDER   STATUTE    OF    FRAUDS.       [§§  376,  377. 

"actually  receive "  a  part  of  the  goods.  As  has  been  noticed, 
too,  this  actual  receipt  is  to  be  distinguished  from  the  accept- 
ance and  may  precede  or  follow  that  act,  and  may  therefore 
exist  without  it.  It  is.  the  correlative  of  the  delivery  required, 
which  has  been  already  noticed.  The  result,  therefore,  is,  that 
there  must  not  only  be  a  delivery  by  the  seller,  but  an  accept- 
ance of  that  delivery,  i.  e.,  an  actual  receipt  of  the  goods,  by 
the  buyer. 

§376.  Nature  of  the  receipt  required.— This  delivery  of 
the  goods  by  the  seller  and  their  receipt  by  the  buyer  are  acts, 
and  from  these  acts  the  intention  of  the  parties  and  the  results 
effected  are  to  be  determined.  To  satisfy  the  statute,  these 
acts,  it  is  said  in  a  leading  case,1  "  must  be  of  such  a  character 
as  to  unequivocally  place  the  property  within  the  power  and 
under  the  exclusive  dominion  of  the  buyer;"  and  further, 
"there  must  be  a  delivery  by  the  vendor,  with  an  intention  of 
vesting  the  right  of  possession  in  the  vendee,  and  there  must 
be  an  actual  acceptance  by  the  latter  with  the  intent  of  taking- 
possession  as  owner." 2 

§  377.  Fact  that  title  would  have  passed  at  common  law, 
not  enough. —  The  fact  that  the  negotiations  may  have  so  far 
progressed  that  the  title  would  have  passed  at  common  law  is 
not  enough.  Thus,  where  the  plaintiff  sued  for  goods  sold  and 
delivered,  the  trial  judge  held  that,  to  maintain  the  action,  two 
facts  must  be  proven  by  the  plaintiff:  1.  The  passing  of  the 
title  between  the  parties  at  common  law ;  and  2.  An  accept- 
ance and  receipt  within  the  statute  of  frauds.  In  approving 
this  ruling,  and  speaking  to  the  point  that  proof  of  the  first 
fact  would  not  dispense  with  proof  of  the  second,  Gray,  C.  J., 
said:  "In  order  to  constitute  an  acceptance  and  receipt  under 
the  statute  of  frauds,  it  is  not  enough  that  the  title  of  the  goods 
has  vested  in  the  buyer;  but  he  must  have  assumed  the  legal 

iShindler  v.  Houston,  1  N.  Y.  261,  lips  v.  Bistolli,  2  B.  &  C.  511;  Marsh 
49  Am.  Dec.  316.  v.  Rouse.  44  N.  Y.  643;  Hinchman  v. 

2Shmdler  v.  Houston,  sujira;  Phil-    Lincoln,  124  U.  S.  38. 

331 


§§  378,  379.]  law  of  sale.  [book  i. 

possession  of  them,  either  by  taking  them  into  the  custody  or 
control  of  himself  or  of  his  authorized  agent,  or  by  making  the 
seller  or  a  third  person  his  bailee  to  hold  them  for  him,  so  as 
to  terminate  the  seller's  possession  of  the  goods  and  lien  for 
the  price." * 

§  378.  Constructive  delivery  and  receipt.— But  while  the 
delivery  and  receipt  must  be  actual,  it  is  not  always  necessary, 
as  it  is  not  always  feasible  or  possible,  that  the  buyer  should 
take  the  goods  into  his  physical  possession.  It  was  said  by 
Judge  Bronson,  "  There  may  be  a  delivery  without  handling 
the  property  or  changing  its  position.  But  that  is  only  where 
the  seller  does  an  act  by  which  he  relinquishes  his  dominion 
over  the  property  and  puts  it  in  the  power  of  the  buyer,  as  by 
delivering  the  key  of  the  warehouse  in  which  the  goods  are 
deposited,  or  directing  a  bailee  of  the  goods  to  deliver  them  to 
the  buyer,  with  the  assent  of  the  bailee  to  hold  the  property 
for  the  new  owner.  In  such  case  there  is,  in  addition  to  the 
words  of  bargain,  an  act  by  which  the  dominion  over  the  goods 
is  transferred  from  the  seller  to  the  buyer." 2 

§  379.  .  So  in  a  Maryland  case  3  the  court  said :  "  In  re- 
gard to  the  proof  of  a  delivery  of  the  goods  in  order  to  gratify 
the  statute,  it  must  be  conceded  that  an  actual  or  manual  de- 
livery is  not  in  all  cases  necessary.  Upon  this  subject  the  law 
is  well  settled  and  clearly  defined,  and  may  be  thus  stated : 
Where  the  goods  are  ponderous  and  incapable  of  being  handed 
over  from  one  to  another,  and  where  the  buyer  so  far  accepts 
them  as  to  treat  them  as  his  own,  exercising  acts  of  ownership 
over  them,  from  which  possession  as  owner  may  be  inferred ; 
or  where  the  delivery  is  symbolical,  such  as  the  delivery  of 
the  key  of  the  warehouse  in  which  the  goods  are  lodged ;  or 
where  actual  delivery  is  impracticable  and  can  only  be  made 
by  such  symbolical  means  as  the  circumstances  of  the  case  will 

1  Rodgers  v.  Jones,  129  Mass.  420.        symbolic:  Wadham  &  Co.  v.  Balfour, 
2Shindler  v.  Houston,  1  N.  Y.  261,    32  Oreg.  313,  51  Pac.  R.  612. 

49  Am.  Dec.  316.    To  the  same  point        3  Atwell  v.  Miller,  6  Md.  10. 

that  delivery  may  be  constructive  or 

332 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.  [§  3S0. 

allow,  as  in  the  case  of  a  ship  or  cargo  at  sea,  etc., —  actual  or 
manual  delivery  is  not  necessary." 

§  380.  What  sufficient. —  Illustrations  of  this  symbol- 
ical or  constructive  delivery  are  numerous.  Thus,  the  delivery 
of  the  key  of  the  building  in  which  the  goods  are  stored,1 
though  the  delivery  be  made  at  a  point  distant  from  the  build- 
ing,- has  often  been  held  sufficient;  and  so  is  the  delivery  of 
the  order,  receipt  or  bill  of  lading  usually  recognized  as  the 
representative  of  the  goods.3 

Catching  and  branding  of  cattle  sold  and  then  turning  them 
loose  upon  a  common  range  is  sufficient;4  and  so  is  going  in 
sight  of  a  lot  of  logs  lying  within  a  boom,  showing  them  to 
the  vendee  and  thereafter  abandoning  control  over  them,  that 
being  as  effectual  a  method  as  the  nature  of  the  case  would 
admit;5  and  the  delivery  of  a  raft  of  boards  as  symbolical  of 
a  lot  of  logs  lying  in  the  river,  and  marked  with  the  same 
mark  as  the  boards.6  "  "Where  the  goods  are  so  situated,"  said 
Shepley,  J.,7  "that  a  delivery  cannot  be  made  at  the  time  of 
sale,  as  a  vessel  at  sea,  a  delivery  of  such,  evidence  of  title  as 
the  seller  possesses  is  sufficient  until  the  purchaser  can  obtain 
possession.8  And  where  goods,  though  not  at  sea,  are  not  in 
the  actual  but  in  the  constructive  possession  of  the  seller,  as 
goods  in  another's  warehouse,  or  logs  in  a  river;  and  where  it 
would  be  very  difficult  on  account  of  the  weight  or  bulk,  as  a 

i  Gray  v.  Davis,  10  N.  Y.  285;  Pack-  ^Boynton  v.  Veazie,  24  Me.  286. 

ardv.  Dunsmore,  HCush.  (Mass.) 282;  7In  Ludwig  v.  Fuller,  17  Me.  162, 

Barr  v.  Reitz,  53  Pa.  St.  236;  Benford  35  Am.  Dec.  245. 

v.  SchelL  55  Pa.  St.  393;  Vining  v.  8  Citing  Lempriere  v.  Pasley,  2  T, 

Gilbreth,  39  Me.  496;  Wilkes  v.  Fer-  R.  483;  Gardner  v.  Howland,  2  Pick. 

ris,  5  Johns.  (X.  Y.)  335.  (Mass.)  599.     Thus,  the  transmission 

-  Vining  v.  Gilbreth,  39  Me.  496.  of  a  bill  of  sale  by  mail  is  a  sufficient 

3  Bass  v.  Walsh,  39  Mo.  192;  Wad-  delivery,  and,  as  against  creditors  of 
hams  v.  Balfour,  32  Oreg.  313,  51  Pac.  the  vendor,  is  perfected  the  moment 
R.  643;  Meehan  v.  Sharp,  151  Mass.  the  letter  is  mailed.  Begley  v.  Mor- 
564,  24  X.  E.  R.  907.  gan,  15  La.  162,  35  Am.  Dec.  188.    To 

4  Walden  v.  Murdock.  23  Cal.  540.  like  effect:    Cocke  v.   Chapman,  2 

5  Jewett  v.  Warren,  12  Mass.  300,  7  Eng.  (Ark.)  197,  44  Am.  Dec.  536. 
Am.  Dec.  74;  Carter  v.  Willard,  19 

Pick.  (Mass.)  1. 

333 


§  3S1.]  LAW  OF  SALE.  [BOOK  T. 

vessel  on  the  stocks,  and  in  other  eases  of  a  peculiar  character, 
what  is  denominated  a  symbolical  delivery  is  sufficient,  and 
this  requires  the  performance  of  such  an  act  as  shows,  without 
any  other  act  to  be  performed,  that  the  purchaser  has  a  right 
to  take  possession,  and  that  the  right  of  the  seller  to  control 
the  property  has  terminated." 1 

|  381,  .  So  the  delivery  to  the  vendee  of  a  bill  of  par- 
cels, followed  by  acts  of  ownership  by  the  vendee,  is  a  suffi- 
cient delivery  of  a  large  quantity  of  pig-iron  lying  on  the  bank 
of  a  canal ; 2  and  so  where  parties  were  negotiating  regarding 
a  specific  quantity  of  pig-iron  lying  by  itself,  and,  having 
agreed  upon  the  terms,  the  vendor  said  to  the  vendees,  "  I  de- 
liver this  iron  to  you,"  but  before  more  could  be  done  the  iron 
was  seized  by  the  sheriff,  it  was  held  that  there  was  a  sufficient 
delivery,  at  least  as  against  creditors,  and  the  ruling  would 
doubtless  be  general.3  "  There  was  here  nothing  remaining  to 
be  done  by  the  vendor  to  consummate  the  sale  or  delivery," 
said  the  court.  "  He  had  no  further  claim  upon  the  iron.  The 
ponderous  nature  of  the  commodity  rendered  the  removal  of 
it,  at  that  time,  impossible.  And  why  should  it  have  been 
moved?  The  vendees  were  there,  upon  the  ground,  and  went 
up  to  receive  the  iron  when  it  was  delivered  by  the  vendor. 
The  delivery  was  not  symbolical,  but  actual,  and  it  was  re- 
ceived by  the  vendees  at  the  hands  of  the  vendor  with  the  in- 
tent to  take  and  hold  possession  of  it.  The  iron  was  not  to  be 
weighed  off  and  separated  from  any  other,  and  thus  desig- 
nated.   There  it  was,  a  parcel  of  ninety-three  tons,  by  itself."4 

Other  cases  are  referred  to  in  the  notes.5 

i  Citing  Harman  v.   Anderson,   2  2Van  Brunt  v.  Pike,  4  Gill  (Md.), 

Camp.  (Eng.)  243;  Manton  v.  Moore,  270,  45  Am.  Dec.  126. 

7  T.  R.  (Eng.)  67;  Hollingsworth  v.  3  Calkins  v.   Lockwood,  17   Conn. 

Napier,  3  Cai.  (N.  Y!)  182,  2  Am.  Dec.  154,  42  Am.  Dec.  729. 

268;  Wilkes  v.  Ferris,  5  Johns.  (N.  Y.)  4  Citing  Chaplin  v.  Rogers,  1  East, 

335,  4  Am.  Dec.  364;  Jewett  v.  War-  192;  Stoveld  v.  Hughes.  14  East,  308: 

ren,  12  Mass.  300,  7  Am.  Dec.  74;  Bad-  Manton  v.  Moore,  7  T.  R.  67. 

lam  v.  Tucker,  1  Pick.  (Mass.)  389, 11  5In  Jones   v.  Reynolds,  120  N.  Y. 

Am.  Dec.  202;  Homes  v.  Crane,  2  213,  24  N.  E.  R.  279,  the  delivery  of  a 

Pick.  607.  model  of  an  invention  was  held  to  be 

334 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  382,383. 

§  382.  Mere  words  do  not  constitute  a  delivery  and  re- 
ceipt,—  Mere  words,  it  is  held,  cannot  amount  to  a  delivery 
and  receipt  of  the  goods,  but  there  must  be,  in  addition,  some 
acts  of  the  parties  over  and  above  the  terms  of  the  contract, 
indicating  on  the  part  of  the  seller  an  unequivocal  intention 
to  surrender  the  ownership  and  possession  of  the  goods  to  the 
buyer,  and,  on  the  part  of  the  buyer,  an  intention  to  assume 
such  ownership  and  possession  in  pursuance  of  the  contract. 
Thus,  where  the  parties  negotiating  in  view  of  the  goods  agreed 
upon  terms,  the  plaintiff  making  an  offer  and  the  defendant 
saying  "It  is  yours,"  nothing  further  being  done,  the  court 
held  that  there  was  no  delivery  and  receipt  which  would  sat- 
isfy the  statute,  the  words  being  rather  a  communication  of 
the  agreement  than  a  delivery  of  the  chattels  in  pursuance  of 
it.1  This  decision  has  been  followed  in  many  other  cases,2 
though  with  some  it  is  not  reconcilable.3 


|  3S3.  .  So  long,  however,  as  the  statute  by  its  terms 

requires  an  actual  receipt,  it  would  seem  that  that  rule  must 
be  the  true  one  which  demands  something  more  than  the  mere 
words  of  the  parties  indicative  merely  of  their  assent  to  the 
agreement.  It  certainly  cannot  be  possible  that  one  portion 
of  the  verbal  agreement  which  it  is  sought  to  establish  can  be 
made  use  of  to  authenticate  the  whole  contract.4     The  evident 

as  complete  a  delivery  as  could  be  300,  7  Am.  Dec.  74,  which  seems  also 

made  of  the  invention.  opposed,  did  not  involve  the  statute 

i  Shindler  v.  Houston,  1  N.  Y.  261,  of  frauds. 

49  Am.  Dec.  316.  4  See  Alderton  v.  Buchoz,  3  Mich. 

2  Gorman  v.  Brossard  (1899),  120  322;  Shindler  v.  Houston,  supra.  See 
Mich.  611,  79  N.  W.  R.  903;  Hallen-  also  Hawley  v.  Keeler.  53  N.  Y.  114. 
back  v.  Cochran,  20  Hun  (N.  Y),  416;  In  Alderton  v.  Buchoz,  supra,  the 
Dehority  v.  Paxson,  97  Ind.  253;  Kel-  plaintiff  had  contracted  to  sell  to  the 
logg  v.  Witherhead,  6Thomp.  &  Cook  defendant  for  $70  a  quantity  of  mill 
(N.  Y.)i  525;  Alderton  v.  Buchoz,  3  irons  from  a  mill  recently  burned; 
Mich.  322;  Hinchman  v.  Lincoln,  124  part  of  the  irons  were  on  the  mill- 
U.  S.  38;  Edwards  v.  Railway  Co.,  54  site  and  others  in  the  cellar  of  a  third 
Me.  105;  Kirby  v.  Johnson,  22  Mo.  354.  person.     Defendant  knew  where  the 

3  Calkins  v.  Lockwood,  17  Conn,  irons  were  and  had  examined  them, 
154,  42  Am.  Dec.  729,  seems  directly  but  at  the  time  of  the  contract  the 
opposed.    Jewett  v.  Warren,  12  Mass.  irons  were  not  present;  no  attempt 

335 


384.] 


LAW    OF    SALE. 


[BOOK    I. 


purpose  of  the  statute  is  that  the  mere  words  of  the  contract 
shall  be  supplemented  by  acts  in  addition  to  and  in  pursuance 
of  that  contract. 

§  384.  Delivery  and  receipt  where  goods  still  remain  in 
seller's  possession. —  Where  the  goods  are  left  in  the  posses- 
sion of  the  seller,  the  presumption,  ordinarily,  would  be  that 
they  had  not  yet  been  delivered  to  and  received  by  the  buyer; 
but  where  it  appears  that  the  terms  of  the  contract  have  been 
fully  agreed  upon  and  the  property  has  been  placed  under  the 
dominion  of  the  buyer,  who  has  been  requested  or  permitted 
it  to  remain  with  the  seller  as  the  bailee  or  agent  of  the  buyer, 
there  may  be  a  sufficient  delivery  and  receipt  to  satisfy  the 
statute. 


was  made  to  comply  with  the  stat- 
ute, "  but  it  was  expressly  agreed 
that  the  defendant  should  take  the 
property  where  it  then  was,  and  that 
the  plaintiff  should  not  be  troubled  to 
make  any  delivery."  Neither  party 
intermeddled  with  the  irons  until 
suit  was  brought,  though  defendant 
on  one  occasion  stated  to  a  third  per- 
son that  he  had  bought  the  irons,  and 
asked  if  the  latter  had  one  of  them 
in  his  possession,  and  was  answered 
in  the  negative.  Afterwards  the 
third  party  informed  the  defendant 
that  he  did  have  the  iron  in  question, 
to  which  the  defendant  replied,  "very 
well."  Held,  that  there  was  no  such 
delivery  as  would  satisfy  the  statute. 
Said  the  court:  "The  stipulation  of 
the  defendant  in  the  agreement  to 
take  the  irons  where  they  then  were 
was  also  relied  on  in  the  argument 
as  evidence  to  save  the  case  from  the 
statute.  This,  however,  will  not  do. 
This  stipulation  was  a  part  of  the 
entire  verbal  agreement  and  it  can- 
not be  separated;  hence,  the  contract 


being  void  by  the  statute,  this  stipu- 
lation must  fall  with  the  other  pro- 
visions," citing  Shindler  v.  Houston, 
supra. 

In  Gorman  v.  Brossard  (1899),  120 
Mich.  611,  79  N.  W.  R.  903,  it  appeared 
that  the  plaintiff  sold  the  defendant 
a  quantity  of  stone,  which  was  de- 
livered and  accepted.  Subsequently 
the  defendant  discovered  that  more 
stone  had  been  delivered  than  he  or- 
dered, and  most  of  the  excess  was 
hauled  into  an  alley  and  the  plaintiff 
notified  that  it  was  subject  to  his 
order.  The  two  parties  then  went 
together  to  where  the  stone  lay,  and 
agreed  that  the  plaintiff  should  take 
the  stone  and  credit  its  value  against 
the  debt  owed  by  the  defendant  for 
it.  Held,  that  the  transaction  was 
a  sale  within  the  statute  of  frauds; 
that  the  agreement  within  sight  of 
the  stone  did  not  constitute  a  deliv- 
ery; that  the  cancellation  of  the 
vendor's  debt  to  the  vendee  was  not 
payment  within  the  meaning  of  the 
statute. 


336 


OH.  VII.]  CONTRACT   UNDER    STATUTE   OF   FRAUDS.       [§§  385,  386. 

g  335.  .  Thus  it  has  been  held  sufficient,  where,  after  a 

sale  of  horses,  the  purchaser  requests  the  seller  to  keep  them  at 
livery  for  him  and  the  seller  consents,  and  thereupon  removes 
them  from  his  sale  stable  to  his  livery  stable;1  where,  after  the 
sale  of  a  horse,  the  seller  requested  the  buyerto  loan  it  to  him, 
which  was  done;2  where  a  carriage  was  bought  but  was  left 
with  the  seller  to  make  certain  alterations;3  where  sheep  were 
bought  but  were  left,  separately  yarded,  with  the  seller,  who 
was  to  keep  them  for  a  given  time  for  the  buyer,  who  agreed 
to  pay  therefor;4  where  barrels  of  beef  were  sold,  the  pur- 
chaser requesting  the  seller  to  keep  it  for  him  and  resell  it,  and 
part  was  so  sold  by  the  purchaser's  direction;5  where  a  sale  of 
hides  was  agreed  upon,  and  they  were  separated  and  marked 
with  the  buyer's  name,  but  left,  at  his  request,  on  storage  in 
the  seller's  warehouse.8 

:;s(i. Goods  remaining  in  seller's  possession  as  seller. 

But  there  can  usually  be  deemed  to  be  no  delivery  to  and  receipt 
by  the  purchaser  while  the  goods  continue  in  the  possession  of 
the  seller  as  such.  Thus,  where  the  sale  is  for  cash,  ami  the  goods 
yet  remain  in  the  seller's  possession,  by  virtue  of  the  vendor's 
lien,  awaiting  the  performance  of  that  condition  precedent- — 
pavment;7  or  where  the  goods  are  to  remain  in  the  vendor's 
possession  until  a  certain  date,  when  payment  is  to  be  made,8 

1  Elmore  v.  Stone,  1  Taunt  437.     See  statute."    Per  Holroyd,  J.,  in  Baldey 

al-,  i  stockwell  v.  Baird,  15  Del.  420, 81  v.  Parker,  2  B.  &  C.  37,  44.    To  same 

Atl.  R.  811.    But  compare  Tempest  effect:    Safford  v.  McDonough,   120 

v.  Fitzgerald.3B.  &Ald.  GSO,  and  Car-  Mass.  290;  Marsh  v.  Rouse,  44  X.  Y. 

ter  v.  Toussaint,  5  B.  &  Aid.  855.  G43;  Edwards  v.  Railway  Co.,  54  Me. 

-Marvin  v.  Wallis,  6  Ell.  &  B.  720.  105;  Messer  v.  Woodman,  22  N.  H. 

»  Beaumont  v.  Brengeri,  5  C.  B.  301.  172,  53  Am.  Dec.  241. 

4  Green  v.  Merriam,  28  Vt.  801.  8In  Terney  v.  Doten,  70  Cal.  399, 

sjanvrin  v.  Maxwell,  23  Wis.  51.  the  defendants  agreed  verbally  to  sell 

6 Safford,  Ex  parte,  2  Low.   (TJ.  S.  the  plaintiff  one  hundred  unbroken 

C.  C.)  5G3.  horses,  at  a  specified  price  each,  out 

7  "As  long  as  the  seller  preserves  of  a  band  of  horses  belonging  to  them, 

his  control  over  the  goods,  so  as  to  then  running  at  large.   The  contract 

retain  his  lien,  he  prevents  the  vendee  provided  that  the  defendants  were 

from  accepting  and  receiving  them  to  gather  up  a  number  of  the  horses 

BS  his  own  within  the  meaning  of  the  of  the  band  from  time  to  time,  from 
22                                               337 


!S6.] 


LAW    OF    SALE. 


[book 


or  security  given;1  or  where  any  other  condition  precedent 
to  the  passing  of  title  remains  to  be  performed  by  the  buyer; 
or  where  something  remains  to  be  done  by  the  seller  to  fit  the 
goods  for  delivery ;  or  where  the  seller  has  yet  to  identify  them 


which  the  plaintiff  was  to  select  a 
certain  number  and  commence 
breaking  them,  after  which  the  num- 
ber so  selected  and  broken  were  to 
be  turned  into  the  defendant's  pas- 
tui-e  and  another  selection  made  in 
like  manner  until  the  whole  number 
agreed  to  be  sold  should  be  gathered 
up,  selected  and  broken.  Thereupon 
the  horses  were  to  be  paid  for  by  the 
plaintiff  and  then  taken  by  him  from 
the  premises  of  the  defendants.  The 
defendants  gathered  up  a  number  of 
the  horses,  from  which  the  plaintiff 
selected  twenty-two,  which  he  broke 
and  turned  into  the  pasture  of  the 
defendants.  Thereafter  the  defend- 
ants refused  to  further  perform  their 
part  of  the  contract.  Held,  that  the 
contract  was  void  under  the  statute 
of  frauds.  Said  the  court:  "In  the 
case  at  bar  none  of  the  horses  form- 
ing the  subject-matter  of  the  con- 
tract ever  passed  into  the  absolute 
possession  and  control  of  the  plaint- 
iff. There  was,  therefore,  no  accept- 
ance and  receipt  of  any  of  them  by 
plaintiff  within  the  meaning  of  the 
statute." 


To  the  same  effect  is  Tempest  v. 
Fitzgerald,  3  B.  &  Aid.  G80,  where 
A  agreed  to  buy  a  horse  from  B  for 
cash,  and  to  take  him  away  within 
a  time  agreed  upon,  and  about  that 
time  A  rode  the  horse  and  gave  di- 
rections as  to  the  treatment,  but  re- 
quested that  it  might  remain  a  further 
time  in  B's  possession,  at  the  expira- 
tion of  which  time  he  agreed  to  take 
the  horse  and  pay  the  price,  to  which 
B  assented,  but  the  horse  died  before 
A  took  him  away. 

To  like  effect,  also,  is  Carter  v. 
Toussaint,  5  B.  &  Aid.  855.  There 
plaintiff  sold  to  defendant  a  horse 
for  £30,  by  verbal  contract.  At  the 
time  of  the  sale  the  horse  required  to 
be  fired,  which  was  done,  with  the  ap- 
probation of  the  defendant  and  in  his 
presence,  and  it  was  then  agreed  that 
the  horse  should  be  kept  by  the  plaint- 
iff for  twenty  days  without  charge. 
At  the  expiration  of  the  twenty 
days  the  horse  was  taken  by  plaint- 
iff, at  defendant's  request,  to  Kings- 
ton Park,  to  be  turned  out  to  grass. 
There  the  horse  was  entered  in 
plaintiff's  name,  at  request  of  defend- 


i  In  Parker  v.  Mitchell,  5  N.  H.  165, 
there  was  a  sale  of  an  anvil  at  auction. 
One  of  the  conditions  of  the  sale  was 
that  the  purchaser  should  have  a 
credit  of  ninety  days  on  giving  good 
security.  The  bidder  removed  the 
anvil  a  little  way  in  the  auction 
room,  but  afterwards  refused  to  take 
it  or  give  security.  Said  the  court : 
"  The  circumstance  that  the  buyer 
took  the  anvil  and  moved  it  is  not 


conclusive  evidence  to  show  a  de- 
livery hj  the  seller  or  acceptance  by 
the  buyer.  At  furthest  it  only  shows 
what  might,  perhaps,  be  considered 
an  acceptance  if  the  seller  elected  so 
to  consider  it.  For  it  is  clear  the 
buyer  had  no  right  to  take  the  anvil 
until  the  security  was  given."  To 
same  effect:  Messer  v.  Woodman,  22 
N.  H.  172,  53  Am.  Dec.  241. 


338 


•CH.   VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS. 


[§  386. 


or  separate  them  from  a  larger  mass,1— there  can  be  no  such 
delivery  and  receipt  as  will  satisfy  the  statute.  There  must 
first  be  a  delivery  by  the  seller  with  intent  to  give  possession 
of  the  goods  to  the  buyer. 


ant.  No  time  was  specified  for  pay- 
ment. Afterwards  defendant  re- 
fused to  take  the  horse.  Held,  that 
the  contract  of  sale  was  not  opera- 
tive, as  the  horse  had  never  left  the 
possession  of  the  sellers,  who  had  a 
lien  on  him  for  the  price.  Elmore 
-v.  Stone,  1  Taunt.  457,  was  distin- 
guished. 

In  Spear  v.  Bach,  82  Wis.  192,  52 
N.  W.  K.  97.  which  was  an  action  for 
the  price  of  stock  alleged  to  have  been 
sold  to  defendant,  plaintiff  testified 
that  lie  met  defendant  on  a  train 
and  there  sold  and  delivered  the 
stock  to  him;  but  that  afterwards, 
the  defendant,  not  having  the  money 
with  him  to  pay  for  it,  handed  it 
hack  to  plaintiff  ami  requested  him 
to  send  it  to  a  certain  bank  and  draw 
on  him  for  the  price.  Plaintiff  sent 
the  stock  to  the  bank  with  draft  at- 
tached, but  the  defendant  failed  to 
take  it.  Held,  no  acceptance  and  re- 
ceipt. 

In  Dole  v.  Stimpson.  21  Pick. 
(Ma^s. )  384,  the  defendant  offered  the 
plaintiff  a  certain  price  for  a  steam- 
engine,  a  part  of  the  money  to  be 
paid  when  the  engine  should  be 
taken  away  by  the  defendant,  which 
was  to  be  done  in  two  or  three  weeks, 
and  the  balance  to  be  secured  by  a 
promissory  note.  The  plaintiff  ac- 
cepted the  offer  and  said,  "  then  you 
consider  the  engine  to  be  yours  as  it 
is,"'  and  the  defendant  said  "  yes." 
The  boiler  was  set  in  bricks,  in  the 
plaintiffs  shop,  and  could  not  be  re- 
moved until  they  were  taken  away. 
and  the  plaintiff  was  to  take  them 


away,  winch  he  did  the  next  week. 
The  defendant  told  a  witness  he  had 
bought  the  engine,  and  made  inqui- 
ries on  what  terms  he  could  get  it 
carried  to  another  place.  The  bar- 
gain was  not  in  writing,  and  the  de- 
fendant did  not  pay  or  secure  any 
part  of  the  price,  and  did  not  take 
away  the  engine.  It  was  held  that 
there  was  no  delivery  and  that  the 
sale  was  therefore  void  under  the 
statute  of  frauds. 

In  Kirby  v.  Johnson,  22  Mo.  354,  a 
contract  was  made  for  the  sale  of 
cattle  in  the  field  of  the  seller.  The 
purr  I  laser  told  the  seller  to  keep  the 
cattle  and  feed  them  until  he  sent 
for  them,  at  the  expense  of  the  pur- 
chaser. The  seller  agreed  to  do  so, 
but  told  the  purchaser  that,  if  any  of 
them  died,  he  must  bear  the  loss,  to 
which  the  latter  assented.  Held,  no 
delivery  to  take  the  contract  out  of 
the  statute  of  frauds.  The  court  re- 
garded Elmore  v.  Stone,  1  Taunt.  457 
(cited  in  §  385,  supra),  as  overruled, 
on  the  strength  of  Proctor  v.  Jones, 
2  C.  &  P.  532.  Chaplin  v.  Rogers,  1 
East,  192  (cited  in  §  361.  supra),  was 
distinguished.  The  case,  however, 
might  well  have  rested  on  the  ground, 
also  mentioned  by  the  court,  that  the 
vendor's  lien  had  not  been  divested. 

JThus  on  a  sale  of  a  quantity  of 
hay,  part  of  a  larger  mass,  there  can 
be  no  delivery  and  receipt  so  long  as 
the  hay  remains  unseparated  and 
unweighed.  Messer  v.  Woodman,  22 
N.  H.  172,  53  Am.  Dec.  241.  In  Rodg- 
ers  v.  Jones.  129  Mass.  420,  a  lot  of 
skins  had  been  sold,  to  be  assorted 


339 


§  387.]  LAW    OF    SALE.  [BOOK    I, 

§  387.  Delivery  and  receipt  where  goods  are  in  possession 
of  a  third  person. —  "When  the  goods  at  the  time  of  the 
sale,"  says  Mr.  Benjamin,1  "  are  in  possession  of  a  third  person, 
an  actual  receipt  takes  place  when  the  vendor,  the  purchaser,, 
and  the  third  person  agree  together  that  the  latter  shall  cease 
to  hold  the  goods  for  the  vendor  and  shall  hold  them  for  the 
purchaser.  They  were  in  possession  of  an  agent  for  the  ven- 
dor, and  therefore,  in  contemplation  of  law,  in  possession  of  the 
vendor  himself;  and  they  become  in  the  possession  of  an  agent 
for  the  purchaser,  and  therefore  in  that  of  the  purchaser  him- 
self. But  it  is  important  to  remark  that  all  of  the  parties, 
must  join  in  this  agreement,  for  the  agent  of  the  vendor  can- 
not be  converted  into  an  agent  for  the  vendee  without  his  own 
knowledge  and  consent.  Therefore,  if  the  seller  have  goods 
in  the  possession  of  a  warehouseman,  a  wharfinger,  carrier,  or 
any  other  bailee,  his  order  given  to  the  buyer  directing  the 
bailee  to  deliver  the  goods,  or  to  hold  them  subject  to  the  con- 
trol of  the  buyer,  will  not  effect  such  a  change  of  possession  as 
amounts  to  actual  receipt,  unless  the  bailee  accepts  the  order 
or  recognizes  it,  or  consents  to  act  in  accordance  with  it,  and 
until  he  has  so  agreed  he  remains  agent  and  bailee  of  the 
vendor." 

This  assent  of  the  bailee  need  not  be  express,  but  may  be 
inferred  from  acts  or  from  acquiescence,  as  in  other  cases.2 

and  weighed  and  then  to  be  removed  was  left  in  the  seller's  possession,  he 
by  the  purchaser.  An  agent  of  the  to  select  and  deliver  the  two  bales, 
purchaser  assisted  in  assorting  part  The  contract  was  held  invalid  as 
of  the  skins,  and  then  went  away  within  the  statute.  Smith  v.  Evans, 
leaving  the  sellers  to  complete  the  36  S.  C.  69,  15  S.  E.  R.  344. 
work.  The  sellers  did  this,  set  the  *  Benjamin  on  Sales,  §  174 
whole  lot  apart  in  bundles  marked  2  A  delivery  order  given  to  the 
with  the  purchaser's  name,  and  noti-  purchaser  does  not  amount  to  a  re- 
fied  the  latter's  agent  that  the  skins  ceipt  until  warehouseman  accepts 
were  ready  for  delivery.  Before  de-  it  and  thereby  assents  to  hold  the 
livery  they  were  burned.  Held,  that  goods  as  agent  of  the  vendee.  Bent- 
there  was  no  acceptance  and  receipt  all  v.  Burn.  3  B.  &  C.  423.  Nor  does- 
within  the  statute.  Likewise  when  the  delivery  of  a  warrant  for  the 
two  bales  of  cotton  were  agreed  to  goods  to  the  purchaser,  though  the 
be  taken  from  three,  but  the  whole  purchaser  keeps  the  warrant  for  ten 

340 


OH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  3SS,  389. 

§  388.  .  Where  the  goods  are  in  a  government  ware- 
house, with  duties  unpaid,  not  even  the  agreement  of  the  bailee 
to  deliver  them  to  the  vendee  will  amount  to  a  receipt  by  the 
vendee,  for  the  goods  are  really  in  the  custody  of  the  govern- 
ment and  the  custodian  has  no  authority  to  deliver  them  until 
the  fees  are  paid  and  the  regulations  complied  with.1  And 
where  the  custodian  of  the  goods  is  a  prior  vendor,  having  a 
lien  on  them  for  the  price,  the  fact  that  he  is  notified  of  a  re- 
sale of  them  to  a  purchaser  who  will  and  does  give  directions 
as  to  their  shipment,  will  not  amount  to  a  receipt  by  such  pur- 
chaser if  the  goods  are  not  so  shipped  and  the  custodian  does 
nothing  to  waive  his  vendor's  lien.2 

AY  here  goods  are  left  with  a  third  person  by  the  vendor  with 
instructions  to  deliver  them  to  the  vendee  when  called  for,  but 
the  vendee  does  not  call  for  them  and  they  remain  in  the  pos- 
session of  such  third  person,  there  is  clearly  no  receipt  by  the 
vendee.8 

§  389.  Delivery  and  receipt  when  goods  are  already  in  pos- 
session of  purchaser. —  Where  the  goods,  at  the  time  of  the 
contract  of  sale,  are  already  in  the  possession  of  the  purchaser 
by  virtue  of  some  other  arrangement,  the  nature  of  the  deliv- 

months  and  refuses  to  return  it,  but  Spooner,  13  Allen  (Mass.),  353,  90  Am. 

does  not  present  it  or  get  the  goods.  Dec.  190. 

Farina  v.  Home,  10  M.  &  W.  119.  Nor  But  where,  upon  the  sale  of  cotton 

is  there  a  receipt  where,  though  the  stored    in    a  warehouse,   the  seller 

goods  are  transferred,  by  the  order  of  gave  the  purchaser  an  oi'der  for  it, 

the  vendor,  on  the  warehouseman's  notifying  the  warehouseman  also  of 

book,    but    their  delivery  is  subse-  the   sale,  and  the  purchaser  there- 

quently  countermanded  by  the  ven-  upon  applied  for  the  cotton,  but  the 

dor  on  account  of  the  vendee's  fail-  delivery  was  postponed  until  next  day 

ure  to  pay.    Godts  v.  Rose,  17  C.  B.  by  agreement  between  the  purchaser 

229.  and  warehouseman,  it  was  held  that 

Where  a  person  in  Massachusetts  there  was  a  sufficient  receipt.    King 

sells  some  hides  in  a  New  York  ware-  v.  Jarman,  35  Ark.  190,  37  Am.  R.  11. 

house,  and  gives  a  bill  of  the  goods  See  also  Townsend  v.  Hargraves, 

and  an  order  on  the  warehouseman  118  Mass.  325,  and  post,  chapter  on 

to  the  buyer,  without  notifying  the  Deliver//. 

warehouseman,  this  is  not  such  a  de-  *  In  re  Clifford,  2  Sawy.  428. 

livery  to  ami  receipt  by  the  buyer  as  -  Marsh  v.  Rouse,  44  N.  Y.  643. 

satisfies  the  statute.     Boardman  v.  3  Hart  v.  Tyler,  15  Pick  (Mass.)  171. 

341 


§  390.]  LAW    OF    SALE.  [BOOK    I. 

ery  and  receipt  which  will  satisfy  the  statute  is  necessarily  dif- 
ferent. It  is  not  necessaiy  that  the  parties  should  go  through 
the  idle  ceremony  of  returning  the  property  to  the  seller  that 
he  may  make  a  new  delivery  to  the  buyer,  who  is  then  to  re- 
ceive it  anew.1  It  is  sufficient  that  the  attitude  of  the  party  in 
possession  shall  be  changed  from  that  of  a  mere  bailee  to  that 
of  a  purchaser  in  pursuance  of  the  contract  of  sale,  and  this 
change  of  attitude  can  be  shown  by  proof  of  such  acts  and  con- 
duct as  indicate  it.2  "  If  it  appears,"  said  the  court  in  the  lead- 
ing case3  upon  the  subject,  "that  the  conduct  of  a  defendant 
in  dealing  with  goods  already  in  his  possession  is  wholly  in- 
consistent with  the  supposition  that  his  former  possession  con- 
tinues unchanged,  he  may  properly  be  said  to  have  accepted 
and  actually  received  such  goods  under  a  contract,  so  as  to  take 
the  case  out  of  the  operation  of  the  statute  of  frauds ;  as,  for 
instance,  if  he  sells  or  attempts  to  sell  goods,  or  if  he  disposes 
absolutely  of  the  whole  or  any  part  of  them,  or  attempts  to  do 
so,  or  alter  the  nature  of  the  property,  or  the  like." 

Whether  the  acts  show  a  receipt  of  this  nature  is  ordinarily 
a  question  of  fact  for  the  jury,4  though  where  the  facts  are  not 
in  dispute  the  court  may  determine  it.5 

§  390.  Delivery  where  seller  and  purchaser  occupy  same 
premises. —  "Where  A  was  at  work  and  living  with  B  upon  the 
latter's  farm,  and  a  sale  of  a  part  of  B's  hogs  to  A  was  agreed 
upon,  and  the  parties  designated  the  hogs,  but  agreed  that 
they  should  remain  upon  the  farm  and  be  fed  and  cared  for 
by  A  with  the  others  until  they  could  be  sold,  it  was  held  that 
there  was  a  sufficient  delivery  to  satisfy  the  statute  and  as 

i  Snider  v.  Thrall,  56  Wis.  674,  14  hay,  part  of  a  large  mass,  already  in 

N.  W.  R.  814.  the  purchaser's  barn,  was  sold  at  auo 

^Edan  v.    Dudfield.   1   Q.  B.   302;  tion.  After  the  sale,  the  seller  offered 

Lillywhite  v.  Devereux,  15  M.  &  W.  to  weigh  and  deliver  the  hay,  pro- 

285;  Snider  v.  Thrall,  supra.  vided  the  purchaser  would  either  pay 

3  Lillywhite  v.  Devereux,  supra.  the  price  or  secure  the  payment.  The 

4Edan  v.  Dudfield;  Lillywhite  v.  purchaser  refused  to  do  either,  and 

Devereux,  supra.  also  refused  to  accept  a  delivery  of 

5  In  Messer  v.  Woodman,  22  N.  H.  the  hay  from  the  seller.     Held,  no- 

172,  53  Am.  Dec.  241,  a  quantity  of  delivery. 

312 


CII.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  391,392. 

\ 

against  ITs  creditors.  Said  Cooley,  J. :  "  It  was  all  the  deliv- 
ery that  could  well  have  been  made  under  the  circumstances 
without  requiring  Anderson  to  remove  the  hogs  from  the  farm 
where  he  was  employed  to  some  other  place  where  they  would 
have  been  less  in  his  possession  than  they  were;  and  for  this 
there  could  have  been  no  sufficient  reason." l 

§  391.  Receipt  by  agent  — Common  agent.— The  receipt  of 
the  goods,  like  their  acceptance,  may  be  not  only  by  the  pur- 
chaser in  person,  but  also  by  his  authorized  agent.2  But  here 
also  the  authority  of  the  agent  must  be  adequate  and  to  the 
point,3  for  authority  to  accept  does  not  necessarily  include 
authority  to  receive,  any  more  than  the  contrary  case.4  This 
authority,  however,  like  the  other,  may  be  express  and  formal, 
or  its  existence  may  be  inferred  from  acts  and  conduct.5  It  is 
not  enough,  however,  that  it  be  created  by  the  same  parol 
agreement  sought  to  be  made  valid  by  such  receipt.6 

g  392,  .  The  same  person  cannot  at  the  same  time  law- 
fully act  as  agent  both  for  the  seller  and  the  buyer  without 
their  knowledge  and  consent;7  but,  with  such  knowledge  and 

i  Webster  v.  Anderson,  42  Mich.  Weiner,  82  Wis.  298,  52  N.  W,  R  435; 

554,  36  Am.   R.   452,   citing   Adams  Moore  v.  Hays,  12  Ind.  App.  476,  40 

Mining  Co.  v.  Senter,  26  Mich.  73.  N.  E.  R.  638. 

Where  the  owner  of  a  horse  rents  3  Spear  v.  Bach,  82  Wis.  192,  52  N. 
a  barn  to  keep  him  in  and  then  sells  W.  R.  97. 
him  to  a  person  who  thereafter  rents  4  See  ante,  %  363. 
the  same  barn  and  continues  to  keep  5See  ante,   §  363;   Wilcox  Silver 
the  horse  in  it,  there  is  nothing  to  Plate  Co.  v.  Green,  72  N.  Y.  17. 
negative    delivery.     Hallock  v.   Al-  ^Hawley  v.  Keeler,  53  N.  Y.  114. 
vord,  61  Conn.  194,  23  Atl.  R.  131.  'Mechem    on  Agency,   §  66.     See 
So  also  where  one  who    owned   a  Caulkins  v.  Hellman,  47  N.  Y.  449,  7 
building  on  the  land  of  another  sold  Am.  R.  461;  Rodgers  v.  Jones,   129 
the  building  to  the  owner  of  the  Mass.  420;   Spear   v.  Bach,  82  Wis. 
land  on  which  it  stood,  and  remained  192,  52  N.  W.  R  97.     In  the  last  case 
therein,  paying  rent  to  the  vendee,  it  was  held  that  where  a  person  who 
it  was  held  there  was  a  sufficient  de-  has  agreed  to  buy  shares  of  stock  re- 
livery  and  acceptance  to  satisfy  the  quests  the  seller  to  send  the  certifi- 
statute.    Reinhart  v.  Gregg,  8  Wash,  cate,  with  draft  for  price,  to  a  cer- 
191.  35  Pac.  R.  1075.  tain  bank,  where  he  will  take  it  up, 

2  See  ante,  §363;  Michelstetter  v.  and  the  seller  does  so,  the  bank  is 

343 


§§  393,  394.]  la.w  of  sale.  [book  i. 

consent,  he  may  act  both  for  the  seller  in  delivering  and  the 
buyer  in  receiving.1  "There  can  be  no  presumption,"  says 
Justice  Campbell,2  "  that  the  agent  of  the  two  parties  will  deal 
unfairly  with  either.  And  when  they  both  deliberately  put 
him  in  charge  of  their  separate  concerns,  and  there  is  any  like- 
lihood that  he  may  have  to  deal  with  the  rights  of  both  in  the 
same  transactions,  instead  of  lessening  his  powers  it  may  be- 
come necessary  to  enlarge  them  far  enough  to  dispense  with 
such  formalities  as  one  man  would  use  with  another,  but  which 
could  not  be  possible  for  a  single  person  to  go  through  with 
alone." 

§  393.  Carrier  as  agent  to  receive.— The  authority  of 

a  carrier  as  agent  to  accept  the  goods  has  already  been  consid- 
ered.3 And,  in  general,  the  same  rule  applies  in  this  case  as  in 
that.  A  delivery  to  a  carrier  not  designated  by  the  purchaser 
cannot  of  itself  be  deemed  a  receipt  by  the  buyer;4  but  where 
the  purchaser  directs  the  delivery  of  the  goods  to  a  carrier  des- 
ignated by  him,  such  a  delivery  will  satisfy  the  statute.5  The 
authority  of  the  carrier  to  receive,  however,  need  not  be  ex- 
pressly conferred,  but  may  be  shown  in  the  same  manner  as  in 
other  cases,  as  by  conduct,  acquiescence  or  ratification.  It  must, 
however,  have  some  other  origin  than  the  parol  agreement  which 
is  sought  to  be  validated  by  such  receipt.6 

§  394.  Acceptance  and  receipt  may  precede  the  passing  of 
title.—  It  is  not  essential  that  the  absolute  legal  title  to  the 

not  thereby  made  the  agent  of  the  6  Cross  v.  O'Donnell.  44  N.  Y.  661,  4 

buyer    to    receive    and  accept  the  Am.  R.  721;  Wilcox  Silver  Plate  Co. 

stock,  but  is  the  agent  of  the  seller  v.  Green,  72  N.  Y.   17;    Caulkins  v. 

only.  Hellman,  47  N.  Y.  449,  7  Am.  R.  461; 

iMechem  on  Agency,   §  67;  Fitz-  Dawes  v.  Peck,  8  T.  R.  330;  Wait  v. 

simmons  v.  Express  Co.,  40  Ga.  330,  2  Baker,  2  Ex.  1;  Fragano  v.  Long,  4 

Am.  R.  577.  B.  &  C.  219;  Dunlop  v.  Lambert,  6 

2  In  Adams  Mining  Co.  v.  Senter,  C.  &  F.  600;  Johnson  v.  Dodgson, 
26  Mich.  73.  2  M.  &  W.  633;  Norman  v.  Phillips, 

3  See  ante,  §  365.  14  M.  &  W.  277 ;  Meredith  v.  Meigh,  2 

4  Cross  v.  O'Donnell,  44  N.  Y.  661,  4  E.  &  B.  364;  Cusack  v.  Robinson,  1  B. 
Am.  R.  721;  Hausman  v.  Nye,  62  Ind.  &  S.  299;  Smith  v.  Hudson,  6  id.  431. 
485,  30  Am.  R.  199.  6Hawley  v.  Keeler,  53  N.  Y.  114. 

344 


OH.  VII.]  CONTRACT   UNDER   STATUTE   OF   FRAUDS:       [§§  395,  390. 

goods  shall  pass  to  the  purchaser  at  the  time  of  the  making  of 
the  contract  of  sale,  in  order  to  render  effective,  under  the  stat- 
ute, an  acceptance  and  receipt  then  occurring,  but  such  accept- 
ance and  receipt  will  sustain  the  contract,  although  the  absolute 
legal  title  is  not  to  pass  to  the  purchaser  until  the  happening  of 
some  event  or  the  performance  of  some  condition  subsequent. 
Thus,  upon  a  contract  of  sale  upon  condition  that,  though  pos- 
session is  at  once  given,  the  legal  title  shall  not  pass  until  the 
price  is  paid,  the  purchaser's  acceptance  and  receipt  of  the  goods 
at  the  time  the  contract  is  made  will  satisfy  the  statute.1 

§  395.  Receipt  and  acceptance  may  be  complete  though 
terms  of  contract  in  dispute.— "It  is  quite  true,"  says  Mr. 
Justice  Matthews,2  "that  the  receipt  and  acceptance  by  the 
vendee  under  a  verbal  agreement,  otherwise  void  by  the  statute 
of  frauds,  may  be  complete,  although  the  terms  of  the  contract- 
are  in  dispute.     Keceipt  and  acceptance  by  some  unequivocal 
act,  sufficiently  proven  to  have  taken  place  under  some  contract 
of  sale,  are  sufficient  to  take  the  case  out  of  the  prohibition  of 
the  statute,  leaving  the  jury  to  ascertain  and  find  from  the  tes- 
timony what  terms  of  sale  were  actually  agreed  on.3    But  as 
was  said  by  Williams,  J.,4  the  acceptance  by  the  defendant 
must  be  in  the  quality  of  vendee.     '  The  statute  does  not  mean 
that  the  thing  which  is  to  dispense  with  the  writing  is  to  take 
the  place  of  all  the  terms  of  the  contract,  but  that  the  accept- 
ance is  to  establish  the  broad  fact  of  the  relation  of  vendor  and 
vendee.'   The  act  or  acts  relied  on  as  constituting  a  receipt  and 
acceptance,  to  satisfy  the  statute,  must  be  such  as  definitely  es- 
tablish that  the  relation  of  vendor  and  vendee  exists."5 

§  396.  No  title  passes  if  goods  not  received  and  accepted. 

Until  the  goods  have  been  received  and  accepted,  no  title,  of 

iPinkham  v.  Mattox,  53  N.  H.  600.    118  Mass.  325;  Benjamin  on  Sales, 
2  In  Hinchman  v.  Lincoln,  124  TJ.  S.     §  170. 
3g  54#  4  in  Tomkinson  v.  Staight,  17  C.  B. 

» Citing  Marsh  v.   Hyde,  3    Gray    697. 
(Mass.),  331;  Townsend  v.  Hargraves,        5  Citing  Remick  v.  Sandford,  120 

Mass.  309. 
345 


§§  397-400.]  LAW  OF  SALE.  [book  I. 

course,  passes  to  the  purchaser,  and  they  are  therefore  not  sub- 
ject to  levy  and  sale  as  his  goods  at  the  suit  of  his  creditors.1 

§  397.  Question  of  receipt  is  for  jury,— Like  the  question 
of  acceptance,2  the  question  whether  or  not  there  has  been  such 
a  delivery  and  receipt  as  will  satisfy  the  statute  is,  where  the 
facts  are  in  dispute,  for  the  jury  to  determine  in  view  of  all 
the  circumstances,3  though,  where  tlie  facts  are  not  disputed, 
the  court  may  dispose  of  it  as  a  matter  of  law. 

4.  Part  of  the  Goods  Sold. 

§  398.  Acceptance  and  receipt  of  part  of  the  goods  suf- 
fices.—  The  statute  requires  the  acceptance  and  receipt  of 
"  part  of  the  goods  so  sold."  It  does  not  designate  what  part, 
but  clearly  requires  that  it  shall  be  a  part  of  the  particular 
goods  so  sold.     Hence  — 

§  399.  Any  part,  though  small,  suffices.— Any  appreciable 
part  of  the  goods,  though  small,  will  suffice  to  satisfy  this  re- 
quirement.4 

§  400.  But  it  must  actually  be  part  of  the  goods  sold  — 
Sample  — Specimen.— The  part  received  must  be  actually  a 
part  of  the  goods  so  sold.  Hence,  the  acceptance  and  receipt 
of  a  mere  sample  or  specimen  like  the  goods  sold,  but  not  act- 
ually apart  thereof,  is  not  enough;5  but  if  the  sample  be  act- 
ually taken  from  the  mass  of  goods  contracted  for,  diminishing 
by  so  much  the  balance  to  be  subsequently  delivered,  it  will 

i  Winner  v.  Williams,  62  Mich.  863,  stock)  are  acting  in  unison  and  con- 

28  N.  W.  R.  904.  sidering  their  several  shares  as  con- 

2  See  ante,  §  373.  stituting  one  block   will  not  make 

3 See  ante,  §  373;  Theilen  v.  Rath,  the  several  interests  so  far  one  that 

80  Wis.  263,  50  N.  W.  R.  183;  Pratt  v.  a  delivery  of  the  shares  of  one  will 

Chase,  40  Me.  269;  Houghtaling  v.  defeat  the  statute  as  to  the  others. 

Ball,  19  Mo.   84,  59  Am.  Dec.   331;  Tompkins  v.  Sheehan  (1899),  158  N.  Y. 

Pinkham  v.  Mattox,  53  N.  H.  600.  617,  53  N.  E.  R.  502. 

4  But  the  mere  fact  that  the  own-        5  Moore  v.  Love, 57  Miss.  765;  Cooper 

ers  of  several  and  distinct  interests  v.  Elston,  7  T.  R.  14. 
(e.  g.,  the  owners  of  several  shares  of 

346 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS. 


[§  401. 


suffice.1    The  sample  must,  of  course,  be  accepted  and  actually 
received  within  the  rules  already  laid  down.2 

§  401.  At  what  time  the  part  may  be  accepted  and  re- 
ceived.—It  is  not  essential  that  the  part  delivery,  acceptance 
and  receipt  should  be  at  the  time  of  making  the  contract.  The 
parol  agreement,  unless  revoked,  may  stand  for  a  mutual  agreed 
proposition,  at  least  for  a  reasonable  time,  where  none  is  fixed, 
and  the  subsequent  acceptance  and  receipt,  while  the  proposi- 
tion remains  open,  of  a  portion  of  the  goods  which  were  the 
subject  of  the  parol  negotiation,  will  make  the  entire  contract 
effective.3 


i  Gardner  v.  Grout,  2  C.  B.  (N.  S.) 
340;  Moore  v.  Love,  57  Miss.  763;  Gil- 
liat  v.  Roberts,  19  L.  J.  Ex.  410. 

2  Thus,  a  mere  taking  of  a  sample 
in  the  hand,  without  any  express  un- 
derstanding that  such  taking  was  to 
be  a  delivery,  would  amount  to  noth- 
ing. Carver  v.  Lane,  4  E.  D.  Smith 
(N.  Y.),  168.  Nor  taking  a  sample 
for  the  purpose  of  testing  it  only, 
and  then  refusing  to  accept.  Me- 
chanical Boiler  Cleaner  Co.  v.  Kellner 
(1899),  62  N.  J.  L.  544,  43  Atl.  R.  599. 
In  Dierson  v.  Petersmeyer  (1899).  — 

Iowa, ,  80  N.  W.  R.  389,  the  court 

said:  "When  making  the  contract 
the  defendant  took  some  corn  in  a 
small  sack  to  send  away  as  a  sample. 
He  simply  helped  himself  to  this, 
and  it  was  neither  delivered  nor 
taken  as  part  of  the  corn  bought. 
No  part  of  that  sold  was  accepted." 
Held,  not  sufficient. 

3  Sprague  v.  Blake,  20  Wend.  (N.  Y.) 
61;  Rickey  v.  Tenbroeck,  63  Mo.  563; 
McKnight  v.  Dunlop,  5  N.  Y.  537,  55 
Am.  Dec.  370;  Davis  v.  Moore,  13  Me. 
424.  Where,  under  a  verbal  agree- 
ment for  the  sale  of  a  lot  of  cattle,  a 
part  was  to  be  delivered  in  one  week 
and  the    remainder  in   instalments 


as  the  buyer  might  require,  held,  that 
though  the  contract  when  made  was 
void  as  such  under  the  statute,  it 
was  good  as  a  proposition  concern? 
ing  the  price,  and  the  subsequent  de- 
livery and  acceptance  of  the  first 
instalment,  at  the  time  fixed,  with- 
out any  change  in  the  proposition, 
made  it  binding  and  took  it  out  of 
the  statute.  Rickey  v.  Tenbroeck, 
63  Mo.  563. 

Where  the  contract  is  entire,  the 
acceptance  and  receipt  of  a  part  of  the 
goods,  though  shipped  at  a  different 
time  from  the  other,  will  make  the  en- 
tire contract  valid.  Farmer  v.  Gray, 
16  Neb.  401. 

Where  the  part  was  not  accepted 
and  received  until  after  the  expira- 
tion of  the  time  within  which  the 
whole  contract  was  to  have  been  com- 
pleted, the  court  doubted  whether 
such  part  receipt  would  save  the 
contract;  but  the  point  was  immate- 
rial, as  the  court  found  that  a  new 
contract  was  made  at  the  time  of  the 
part  delivery,  which  new  contract 
was  made  good  by  such  part  deliv- 
ery. Damon  v.  Osborn,  1  Pick.  (Mass.) 
476.  11  Am.  Dec.  229. 

On  January   1,  plaintiff  made   a 


347 


§§  402,  403.]  LAW   OF   SALE.  [book   t. 

And  this  is  true  even  though  the  goods  consist  of  several 
parcels,  or  are  to  be  delivered  in  instalments  at  different  times.1 

§  402.  After  part  acceptance  and  receipt,  loss  of  remainder 
before  delivery  falls  on  purchaser.— The  entire  contract 
being  thus  made  effective  by  the  part  acceptance  and  receipt, 
the  rights  and  liabilities  of  the  parties  must  be  determined  as 
of  the  date  of  the  agreement.  Hence,  if  after  a  part  accept- 
ance and  delivery  the  remainder  of  the  goods,  though  still  in 
the  hands  of  the  seller,  are  destroyed  without  his  fault,  the 
loss  must  fall  upon  the  purchaser.2 

§  403.  Acceptance  and  receipt  of  part  must  be  in  pursu- 
ance of  contract. —  The  acceptance  and  receipt  of  the  part  must 
be  in  pursuance  of  and  with  the  intention  of  performing  the 
entire  contract,  of  whose  continuing  existence  they  are  to  be  the 
recognition.  If,  therefore,  at  the  time  of  receiving  the  part  the 
buyer  repudiates  the  contract,  and  receives  the  part  as  being 
the  maximum  extent  of  his  obligation,  such  an  acceptance  and 
receipt  cannot  save  the  contract  as  to  the  residue.3 

parol  contract  with  defendant  to  sell  x  See  cases  in  foregoing  note. 
him  all  the  wood  upon  a  certain  lot  So  also  in  Gilbert  v.  Lichtenberg, 
at  a  fixed  price  per  cord,  and  to  de-  98  Mich.  417,  57  N.  W.  R.  259,  where 
liver  as  much  as  he  could  that  win-  there  was  a  sale  of  a  quantity  of  ou- 
ter and  the  balance  the  winter  and  ions,  aggregating  three  car-loads,  it 
year  following,  the  defendant  to  pay  was  held  that  the  delivery  and  ae- 
on demand  for  amount  delivered  at  ceptance  of  one  car-load  satisfied  the 
the  close  of  each  winter's  delivery,  statute  as  to  the  whole  transaction. 
Plaintiff  delivered  a  portion  of  the  See  also  to  the  same  point,  Fruit  Co. 
wood  that  year,  which  was  accepted  v.  McKinney,  65  Mo.  App.  220. 
and  paid  for;  the  remainder  he  deliv-  2  Townsend  v.  Hargraves,  118  Mass. 
ered  the  winter  and  spring  following,  325;  Vincent  v.  Germond.  11  Johns, 
but  defendant  refused  to  accept  or  283;  Gilbert  v.  Lichtenberg,  98  Mich, 
pay  for  it.     Held,  that  the  contract  417,  57  N.  W.  R.  259. 
was  entire,  and  that  the  delivery  and  SAtherton  v.  Newhall,  123  Mass. 
acceptance  of  the  first  part  took  the  141,  25  Am.  R.  47,  citing  Townsend  v. 
whole  contract  out  of  the  statute.  Hargraves,  118  Mass.  325,  333;  Remick 
Gault  v.  Brown,  48  N.  H.  183,  2  Am.  v.  Sandford,  120  id.  309. 
R.  210.    See  also  Edgar  v.  Breck,  172 
Mass.  581. 

348 


CH.  VII.]  CONTRACT    UNDEK   STATUTE    OF    FRAUDS.       [§§  404-406. 

5.  Em-nest  or  Part  Payment, 
a.  Of  Earnest. 

§  404.  Earnest  and  part  payment  synonymous.— The  idea 
of  giving  something  in  earnest  to  bind  the  bargain  was  bar- 
rowed  from  the  civil  law,1  and  among  the  Komans  earnest  con- 
sisted of  money  or  some  gift  or  token  given  by  the  buyer  to  the 
seller  and  accepted  by  the  latter  in  recognition  of  the  final  and 
conclusive  assent  of  the  parties  to  the  bargain.  As  such  it  was 
formerly  in  use  in  England.2 

In  modern  times,  however,  earnest  and  part  payment  are  re- 
garded as  synonymous.  Thus  it  is  said  in  Massachusetts:  "  As 
used  in  the  statute  of  frauds,  '  earnest '  is  regarded  as  a  part 
payment  of  the  price." 3  But  no  sufficient  reason  is  apparent 
why  the  giving  of  some  token  in  earnest  should  not  still  have 
its  ancient  effect. 

§  405.  The  thing  in  earnest  must  be  actually  given.— But 
to  have  the  effect  contemplated  by  the  statute,  the  thing  in 
earnest  must  actually  be  given  by  the  buyer  and  received  by 
the  seller.  The  mere  crossing  of  the  vendor's  hand,  therefore, 
by  the  buyer  with  a  piece  of  silver,  which  the  latter  afterwards 
puts  back  into  his  pocket  and  retains,  is  not  sufficient.4 

§  406.  And  must  be  a  thing  of  some  value  —  Buyer's  note. 

So  it  is  held  that  the  thing  in  earnest  must  be  a  thing  of  value. 
Therefore  the  buyer's  own  note  for  a  part  of  the  purchase  price, 
being  without  other  consideration  than  the  parol  agreement, 
was  held  insufficient  as  earnest,  as  being  of  no  value.5 

i  Howe  v.  Hay  ward,  108  Mass.  54,  Pordage  v.  Cole,  1  Saund.  3197i;  Lang- 

11  Am.  R.  306;  Benjamin  on  Sales,  fort  v.  Tiler,  1  Salk.  113;  Morton  v. 

g  189.  Tibbett,  15  Q.  B.  428;  Walker  v.  Nus- 

2  Benjamin  on  Sales,  §  189,  citing  sey,  16  M.  &  W.  302;  1  Dane's  Abr. 

Bracton,  1,  2,  c.  27;  Bach  v.  Owen  235. 

(1793),  5  T.  R.  409;  Goodall  v.  Skelton  *Blenkinsop  v.  Clayton,  7  Taunt. 

(1794),  2  H.  Bl.  316.  597. 

a  Howe  v.  Hay  ward,  108  Mass.  54,  ^Krohn  v.  Bantz,  68  Ind.  277. 
11  Am.  R.  306,  citing  2  BL  Com.  447; 

349 


§§  407-412.]  LAW    OF    SALE.  [BOOK    I. 

§  407.  A  deposit  with  a  third  person  by  way  of  forfeiture 
not  enough. — A  deposit,  by  each  party,  of  a  sum  of  money  with 
a  third  person  "  as  a  forfeiture,  to  be  paid  over  to  the  party  who 
was  ready  to  perform  the  contract,  if  the  other  party  neglected 
to  do  so,"  fails  obviously  to  fall  within  either  the  definition  of 
earnest  or  of  part  payment,  and  will  not  save  a  contract  by 
parol.1  And  the  same  is  true  where  each  party  deposits  his 
check  as  a  forfeiture.2 

§408.  The  effect  of  earnest  in  passing  title.  — This  is  a 
question  reserved  for  future  consideration,3  the  only  question 
here  being  the  effect  of  earnest  in  giving  validity  to  the  con- 
tract. 

1).  Of  Part  Payment. 

§409.  What  the  statute  requires. —  The  statute  requires 
the  giving  of  something  in  part  payment.  This  clearly  con- 
templates a  part  payment  of  the  purchase  price, —  something 
which  is  to  be  deducted  from  the  whole  amount,  and  not,  like 
earnest  proper,  something  in  addition  to  it. 

§  410.  The  amount  required. —  The  statute  does  not  specify 
the  amount  to  be  paid,  but  clearly  any  appreciable  amount 
paid  and  received  as  a  part  payment  will  satisfy  the  statute. 

§  411.  What  may  be  given  in  part  payment. —  The  statute 
does  not  require  the  payment  of  money,  but  of  "  something  "  in 
part  payment.  Clearly,  therefore,  anything  of  value  which 
may  be  used  in  payment,  .and  which  the  parties  give  and  take 
as  such,  will  suffice.4     Thus  — 

§  412.  Check. —  A  check,  drawn  upon  funds  and  duly 

paid,  will  suffice  where  the  parties  give  and  receive  it  as  part 

iHowe  v.  Hay  ward,  108  Mass.  54,  18  N.  E.  R.  24,  Judge  Elliott  says: 

11  Am.  R.  30G;  Jennings  v.  Dunham.  "What  the  parties  agree  shall  con- 

60  Mo.  App.  635.  stitute    payment  the    law   will  ad- 

'-'Noakes  v.  Morey,  30  Ind.  103.  judge  to  be  payment.     It  is  compe- 

3  See  post,  %%  514,  532.  tent  for  parties  to  designate  by  their 

4  In  Weir  v.  Hudnut,  115  Ind.  525,  contract  how  and  in  what  payment 

350 


CII.  VII.]  C0NTKACT    UNDER    STATUTE    OF    FKAUDS.       [§§  413-415. 


payment.1  So  it  was  held  that  a  check  drawn  upon  a  deposit 
will  suffice,  although  it  has  not  yet  been  presented  for  pay- 
ment.2 

|  413.  Buyer's  note.— But,  inasmuch  as  a  mere  prom- 
ise to  pay  cannot  be  regarded  as  an  actual  payment,  it  is  clear 
that  the  buyer's  own  note  cannot  satisfy  the  statute  unless  it 
be  received  and  treated  as  payment.3 

§  414.  Note  of  strangers.— But  the  note  of  a  third 

person,  accepted  as  payment,  and  not  merely  as  collateral,  will 
suffice.4 

§  415.  Money  already  in  hands  of  seller.— Where 

money,  already  in  the  hands  of  the  seller  and  due  to  the  buyer 
upon  previous  dealings,  is  agreed  by  both  parties  to  be  retained 
and  applied  by  the  seller  as  part  payment,  it  will  suffice.5  The 
parties  need  not  go  through  the  idle  ceremony  of  having  the 
seller  pay  the  money  to  the  buyer  in  satisfaction  of  the  previ- 
ous indebtedness,  to  be  immediately  returned  to  the  seller  as 
part  payment. 


may  be  made.  It  is  by  no  means 
true  that  payment  can  only  be  made 
in  money;  on  the  contrary,  it  may 
be  made  in  property  or  in  services. 
In  short,  whatever  the  parties  agree 
shall  constitute  payment  will  be  re- 
garde  1  by  the  courts  as  payment, 
provided  the  thing  agreed  upon  is  of 
some  value."  In  this  case  there  was 
a  sale  of  corn,  and  the  parties  agreed 
that  sacks  delivered  by  the  pur- 
chaser to  the  seller  to  be  used  in 
transporting  the  corn  should  const  i- 
stitute  a  part  payment;  that  is,  their 
use  by  the  seller  should  be  taken  as 
a  part  satisfaction  of  the  price  of  the 
corn.  This  point  of  the  agreement 
distinguishes  this  case  from  the  de- 
cision in  Hudnut  v.  Weir,  100  Ind. 


501,  in  which  it  was  shown  that  the 
sacks  were  delivered,  but  the  fact 
that  the  value  of  their  service  was 
to  be  deducted,  by  agreement  of  the 
parties,  from  the  cost  of  the  corn 
was  not  made  to  appear. 

i  Hunter  v.  Wetsell,  84  N.  Y.  549, 
38  Am.  R.  544 

^McLure  v.  Sherman,  70  Fed.  R. 
190. 

3Krohn  v.  Bantz,  68  Ind.  277:  Ire- 
land v.  Johnson,  18  Abb.  Pr.  (N.  Y.J 
392.  The  surrender  by  the  buyer  of 
the  seller's  note  previously  given  is 
sufficient.  Sharp  v.  Carroll,  66  Wis. 
63,  27  N.  W.  R.  832. 

4  Combs  v.  Bateman,10  Barb.  (N.  Y.) 
573. 

5  Dow  v.  Worthen,  37  Vt.  108. 


351 


§§  416-419.]  LAW    OF    SALE.  [BOOK    I. 

§  416.  Agreement  to  satisfy  previous  indebtedness 

as  part  payment. —  But  a  mere  agreement  that  the  price  or  a 
part  thereof  shall  be  applied  upon  a  prior  indebtedness  of  the 
buyer  to  the  seller  cannot  operate  as  a  payment  in  whole  or  in 
part.1  In  order  to  satisfy  the  statute  there  must  be  some  act, 
such  as  a  receipt  or  a  discharge,  or  an  indorsement  or  an  entry, 
by  which  the  application  is  actually  made.2 

§  417.  Payment  of  seller's  debt  to  third  person, — 

But  the  actual  payment  by  the  buyer  to  a  third  person,  at  the 
seller's  direction,  of  a  debt  due  from  the  seller  to  such  third 
person,  is  as  effectual  as  a  payment  to  the  seller  in  person.3 

§  418.  Mere  unaccepted  part  payment  not  enough.—  The 

payment  must  clearly  be  actually  made  and  received,  and  a 
proffered  payment  not  accepted  is  therefore  not  enough.  Thus 
where  the  seller  wrote  that  he  should  stand  to  the  contract, 
"  but  shall  want  you  to  pay  me  fifty  dollars  to  bind  it,"  and  the 
buyer  at  once  sent  the  money  in  a  letter  which  the  seller  im- 
mediately returned,  there  was  held  to  be  no  part  payment.4 

§  419.  When  part  payment  to  be  made  —  "At  the  time." 

The  statute  in  New  York  and  some  other  States  requires3  the 
part  payment  to  be  made  "  at  the  time  "  of  the  contract,  and  a 

lArtcherv.  Zeh,  5  Hill  (N.  Y.),  200;  2  Gorman   v.    Brossard   (1899),  120 

Clark  v.  Tucker,  2  Sandf.  (N.  Y.)  157;  Mich.  611,  79  N.  W.  R.  903;  Clark  v. 

Matthiessen,  etc.  Co.  v.  McMahon,  38  Tucker,  supra;  Walker  v.  Nussey,  16 

N.  J.  L.  536;  Gaddis  v.  Leeson,  55  111.  M.  &  W.  302;  Galbraith  v.  Holmes,  15 

83;  Brabin  v.  Hyde,  32  N.  Y.  519;  Ind.  App.  34,  43  N.  E.  R.  575;  Nor- 

Mattice  v.  Allen,  3  Abb.  App.  Dec.  wegian  Plow   Co.    v.    Hanthorn,  71 

(N.  Y.)  248,  3  Keyes,  492.  Wis.  529,  37  N.  W.  R.  825. 

An  agreement  that  a  sum  of  money,  3Wood    on    Statute    of   Frauds, 

which    had    been   overpaid   to    the  §294,  n.;  Brady  v.  Harrahy,  21  Up. 

vendor  upon  previous  sales  to  the  Can.  Q.  B.  340;  Stoddard  v.  Graham, 

same  purchaser,  should  be  returned  23  How.  Pr.  518. 

to  apply  on  a  later  one  in  question,  4Edgerton   v.    Hodge,  41  Vt.  676; 

does  not  constitute   such  part  pay-  Bowers  v.  Andersen,  49  Ga.  145. 

ment  as  satisfies  the  statute.    Norton  5As  in  Alabama,  Arizona,  Califor 

v.  Davison,  [1899]  1  Q.  B.  401,  approv-  nia,  Colorado,  Dakota,  Idaho.  Minne- 

ing  Walker  v.  Nussey,  16  M.  &  W.  sota,    Montana,    Nebraska,   Nevada, 

302.  Oregon,  Utah,  Wisconsin,  Wyoming, 

352 


CH.  VII.]  CONTRACT    UNDER   STATUTE   OF   FRAUDS.       [§§  420,  421. 

payment  made  subsequently  will  not  suffice,  except  (1)  where 
the  parties  subsequently  meet,  and  for  the  express  purpose  of 
then  complying  with  the  statute  and  making  the  contract  valid, 
a  payment  is  made  on  the  contract  at  the  request  of  the  seller; 
or  (2)  where  the  parties  subsequently  come  together  and  sub- 
stantially restate,  reaffirm  or  renew  its  terms,  so  as  then  and 
there,  by  the  meeting  of  their  minds,  to  make  a  contract,  and 
then  a  payment  is  made  upon  it.1 

§  420.  .  A  substantial  compliance  with  the  statute  in 

this  respect  suffices.  "  The  statute  does  not  mean  rigorously 
eo  instanti.  It  does  contemplate  that  the  contract  and  the 
payment  shall  be  at  the  same  time  in  the  sense  that  they  con- 
stitute parts  of  one  and  the  same  transaction." 2 

Under  such  a  provision,  the  contract  seems  to  take  effect 
from  the  date  of  the  part  payment,  which  is  the  date  of  what 
is  practically  a  new  contract.3 

Where,  however,  the  statute  does  not  require  payment  "at 
the  time,"  payment  made  and  accepted  at  any  time  before  ac- 
tion brought  would  seem  to  be  sufficient;4  and  in  such  case, 
by  analogy  to  part  receipt,5  the  contract  would  take  effect  from 
its  date. 

§  421.  Part  payment  to  agent  suffices.— The  payment  of 
part  of  the  purchase  price  to  the  seller's  agent,  if  authorized  to 
receive  such  payment,  suffices.  Authority  to  receive  such  pay- 
ment may,  as  in  other  cases,  be  conferred  either  by  prior  au- 

i  Browne  on  Stat.  Frauds,  §  343,  n. ;  2  Hunter  v.  Wetsell,  84  N.  Y.  549, 

Hunter  v.  Wetsell,  57  N.  Y.  375,  15  38  Am.  R.  544 

Am.  R  508;  s.  C,  84  N.  Y.  549,  38  Am.  3  Wood  on  Statute  of  Frauds,  §  294; 

R  544;  Jackson  v.  Tupper,  101  N.  Y.  Bissell  v.  Balcom,  39  N.  Y.  275;  Mo- 

515;  Bates  v.  Chesebro,  32  Wis.  594,  Knight  v.  Dunlop,  5  N.  Y.  537,  55  Am. 

36  Wis.  636;  Paine  v.  Fulton,  34  Wis.  Dec.  370. 

83;  Kerkhof  v.  Atlas  Paper  Co.,  68  *See  Thompson  v.  Alger,  12  Mete. 

Wis.  674,  32  N.  W.  R.  766;   Crosby  (Mass.)  428;  Walker  v.  Nussey,  16  M. 

Hardwood  Co.  v.  Trester,  90  Wis.  412,  &  W.  302,  per  Parke,  B. 

63  N.  W.  R.  1057;  Hanson  v.  Roter,  5  Gault  v.  Brown,  48  N.  H.  183,  2 

64  Wis.  622.  Am.  R.  210. 

23  353 


§§  422-424.]  LAW   OF   SALE.  [book    I. 

thorization  or  subsequent  ratification,1  but  it  cannot  be  made 
to  depend  upon  the  same  verbal  agreement  which,  by  such 
payment,  is  sought  to  be  sustained.2 

6.  Of  the  Note  or  Memorandum. 

§422.  What  the  statute  requires.— The  statute  provides 
that  the  agreement  for  the  sale  shall  not  be  good  in  the  ab- 
sence of  the  acts  already  referred  to,  "  except  that  some  note 
or  memorandum  in  writing  of  the  said  bargain  be  made  and 
signed  by  the  parties  to  be  charged  by  such  contract,  or  their 
agents  thereunto  duly  authorized." 

There  must  now  be  considered,  therefore, — 

a.  What  is  a  note  or  memorandum. 

h.  What  note  or  memorandum  will  suffice. 

c.  The  signing  by  the  parties. 

d.  The  signing  by  their  agents  duly  authorized. 

a.  What  is  a  Note  or  Memorandum. 

§  423.  Is  distinct  from  the  agreement  itself.— And  first 
it  may  be  noticed  that  the  note  or  memorandum  of  the  agree- 
ment is  distinct  from  the  agreement  itself.  If  the  parties  have 
formally  reduced  their  agreement  to  writing,  there  is,  of  course, 
no  occasion  for  any  further  note  or  memorandum  of  it.  What 
the  statute  here  refers  to  is  a  parol  agreement  of  which  some 
written  note  or  memorandum  is  made. 

§  424.  At  what  time  note  or  memorandum  must  be  made.— 

It  is  not  essential  that  the  note  or  memorandum  should  be 
made  contemporaneously  with  the  agreement  itself.3  It  is  suf- 
ficient if  made  at  any  time  before  action  brought  upon  the 
agreement.4  Whether  it  may  be  made  after  action  brought 
has  been  thought  not  so  clear.  Peters,  J.,  says  in  one  case:5 
"  There  has  been  some  judicial  inclination  to  favor  the  doc- 

i  Hawley  v.  Keeler,  53  N.  Y.  114.  *  Bill  v.  Bament,  9  M.  &  W.  3G. 

2  Hawley  v.  Keeler,  mpra.  5  Bird   v.  Munroe,  66  Me.  337,  23 

3  Sherwood  v.  Walker,  66  Mich.  568,  Am.  R.  571. 
11  Am.  St.  R.  531. 

354 


•CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  425,  426. 

trine  to  that  extent  even,  and  there  may  be  some  logic  in  it. 
Still  the  current  of  decision  requires  that  the  writing  must 
exist  before  action  brought.  And  the  reason  for  the  require- 
ment does  not  militate  against  the  idea  that  a  memorandum 
is  only  evidence  of  the  contract.  There  is  no  actionable  con- 
tract before  memorandum  obtained.  The  contract  cannot  be 
sued  until  it  has  been  legally  verified  by  writing;  until  then 
there  is  no  cause  of  action  although  there  is  a  contract.  The 
writing  is  a  condition  precedent  to  the  right  to  sue."  And  in 
a  recent  English  case'  it  is  held  that  the  writing  must  exist  at 
the  time  the  action  is  begun. 

§425.  Form  of  the  note  or  giemorandnm. —  The  statute 
prescribes  no  form  for  the  note  or  memorandum,  and  it  is  well 
settled  that  no  particular  form  is  required,  but  that  any  writing, 
howsoever  informal,  may  suffice,  provided  always  it  contains  the 
essential  elements  of  the  agreement  and  is  duly  signed.2  Thus  — 

^  420.  Several  papers. —  The  note  or  memorandum  need  not 
be  comprised  in  a  single  paper,  but  may  be  composed  of  a  num- 
ber of  papers,  and  they  may  be  made  at  different  times.3  J  Jut 
unless  each  paper  is  properly  signed,4  it  is  essential  that  the 

1  Lucas  v.  Dixon,  22  Q.  B.  Div.  357.  citing  Levned  v.  Wannemacher,  9 
-Mason  v.  Decker.  72  N.  Y.  595,  2s  Allen  (Mass.).  412;  Rhoades  v.  Cast- 
Am.  R.  190;  Dresel  v.  Jordan.  1<>4  ner,  12  id.  132;  Peek  v.  Vandeniark, 
Mass.  407;  Newby  v.  Rogers,  40  Ind.  99  N.  Y.  29;  Lee  v.  Mahony,  9  Iowa, 
9;  Ide  v.  Stanton.  15  Yt.  685,  40  Am.  344;  Jelks  v.  Barrett.  52  Miss.  315; 
Dec.  69S;  Getchell  v.  Jewett.  4  Greenl.  Fisher  v.  Kuhn,  54  id.  480;  Thayer  v. 
(Me.)  350;  Old  Colony  R.  R.  Co.  v.  Luce.  22  Ohio  St.  62;  Salmon  Falls 
Evans.  6  Gray  (Mass.  >,  25,  06  Am.  Dec.  Mfg.  Co.  v.  Goddard.  14  How.  (U.  S.  1 
394:  Ivory  v.  Murphy,  36  Mo.  534:  447:  Parkhurst  v.  Van  Cortland,  14 
Worrall  v.  Munn,  5  N.  Y.  229,  55  Johns.  (N.  Y.)  15];  American  Oak 
Am.  Dec.  330;  Lowry  v.  Mehaffy.  10  Leather  Co.  v.  Porter,  94  Iowa.  117, 
Watts  (Pa.).  3S7;  Douglass  v.  Spears.  62  X.  W.  R.  658;  Fowler  Elevator  Co. 
2  N.  &  McC.  (S.  C.)  207,  10  Am.  Dec.  v.  Cottrell,  38  Neb.  512,  57  X.  W.  R.  19; 
588;  McConnell  v.  Brillhart,  17  111.  Turner  v.  Lorillard  Co.,  100  Ga.  045. 
35 1.  65  Am.  Dec.  661.  28  S.  E.  R.  383;  Olson  v.  Sharpless,  53 
3  Johnson  v.  Buck,  35  X.  J.  L.  338.  Minn.  91.  55  X.  W.  R.  125:  GriffithsCo. 
10  Am.  R.  243;  Louisville  Asphalt  v.  Humber,  [1899]  2  Q.  B.  414. 
Varnish  Co.  v.  Lorick,  29  S.  C.  533,  *  In  Thayer  v.  Luce.  22  Ohio  St.  62, 
8  S.  E.  R.  8,  2  L.  R.  A.  212  [and  note  it  is   said:   "That  several  writings, 

335 


426.] 


LAW   OF   SALE. 


[BOOK   I. 


unsigned  papers  be  either  physically  annexed  to  the  signed 
paper,1  or  that  there  be  such  reference  in  the  signed  paper  to 
the  unsigned  that  they  may  be  construed  as  one  instrument.2 
Reference  in  the  unsigned  paper  to  the  signed  paper  is  not 
enough;3  nor  is  parol  evidence  admissible  to  connect  the  un- 
signed to  the  signed ; 4  though  if  the  signed  paper  contains  a 
clear  reference  to  an  unsigned  paper,  but  does  not  sufficiently 


though  executed  at  different  times, 
may  be  construed  together,  for  the 
purpose  of  ascertaining  the  terms  of 
a  contract  and  for  the  purpose  of 
taking  an  action  founded  thereon 
out  of  the  statute  of  frauds,  is  fully- 
settled.  In  such  cases,  however,  the 
mutual  relation  of  the  several  writ- 
ings to  the  same  transaction  must 
appear  in  the  writings  themselves, 
parol  evidence  being  inadmissible  for 
the  purpose  of  showing  their  connec- 
tion. If  one  only  of  such  papers  be 
signed  by  the  party  to  be  charged  in 
the  action,  the  rule  seems  to  be  that 
special  reference  must  be  made 
therein  to  those  papers  that  are  not 
so  signed;  but  if  the  several  papers 
relied  on  be  signed  by  such  party,  it 
is  sufficient  if  their  connection  and 
relation  to  the  same  transaction  can 
be  ascertained  and  determined  by  in- 
spection and  comparison." 

"The  connection  between  them 
must  appear  by  internal  evidence 
derived  from  the  signed  memoran- 
dum."   Johnson  v.  Buck,  supra. 

A  letter  written  by  an  agent, 
within  the  scope  of  his  authority, 
which  refers  to  and  recognizes  an 
unsigned  document  as  containing  the 
terms  of  a  contract  made  by  his  prin- 
cipal, is  sufficient.  Griffiths  Co.  v. 
Humber,  [1899]  2  Q.  B.  414. 

1  As  by  pinning  or  otherwise  fast- 
ening them  together.  Talhnan  v. 
Franklin,  14  N.  Y.  584. 


«'Coe  v.  Tough,  11G  N.  Y.  273  [cit- 
ing Baptist  Church  v.  Bigelow,  16 
Wend.  (N.  Y.)  28;  Wright  v.  Weeks, 
25  N.  Y.  153;  Drake  v.  Seaman,  97 
N.  Y.  230;  Stone  v.  Browning,  68 
N.  Y.  598];  Johnson  v.  Buck.  35  N.  J. 
L.  338, 10  Am.  R.  243;  Griffiths  Co.  v. 
Humber,  [1899]  2  Q.  B.  414. 

3  Thayer  v.  Luce,  22  Ohio  St.  62. 

4 "The  connection  between  the 
signed  and  the  unsigned  papers  can- 
not be  made  by  parol  evidence  that 
they  were  actually  intended  by  the 
parties  to  be  read  together,  or  of  facts 
and  circumstances  from  which  such 
intention  may  be  inferred.  The  con- 
nection between  them  must  appear 
by  internal  evidence  derived  from 
the  signed  memorandum.  Parol  tes- 
timony will  be  received  only  for  the 
purpose  of  interpretation  or  explana- 
tion where  technical  terms  are  em- 
ployed, or  to  identify  papers  which, 
by  a  reference  in  the  signed  memo- 
randum, are  made  parts  of  it."  John- 
son v.  Buck,  35  N.  J.  L.  338. 10  Am.  R. 
243  (citing  Boydell  v.  Drummond,  11 
East,  142;  Coles  v.  Trecothick,  9  Ves. 
234;  Clinan  v.  Cooke,  1  Sch.  &  Lef- 
roy,  22;  Dobell  v.  Hutchinson,  3  Ad. 
&  E.  355;  Ridgway  v.  Wharton,  6 
H.  of  L.  Cas.  238;  Parkhurst  v.  Van 
Cortlandt.  1  Johns.  Ch.  (N.  Y.)  273). 
See  also  Brown  v.  Whipple,  58  N.  H. 
229;  Hinde  v.  Whitehouse,  7  East, 
558;  Kenworthy  v.  Schofield,  2  B.  & 
C.  945. 


356 


•CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  427,  428. 

describe  it,  it  is  held  that  parol  evidence  may  be  resorted  to  to 
identify  the  unsigned  paper  referred  to;1  and  where  the  refer- 
ence to  the  unsigned  paper  is  ambiguous,  parol  evidence  may 
be  admitted  to  solve  the  ambiguity.2 

§  427.  .  But  the  several  papers,  though  sufficiently  con- 
nected, must  also  be  consistent  and  harmonious,  for,  if  they 
are  contradictory  or  inconsistent,  they  will  clearly  be  insuffi- 
cient to  satisfy  the  statute,  inasmuch  as  it  would  be  impossible 
to  determine  what  the  bargain  was  without  the  introduction 
of  parol  evidence  to  show  which  paper  stated  it  correctly.3 

And  so,  obviously,  when  all  the  papers  which  are  actually 
annexed  or  by  reference  incorporated  do  not  constitute  a  com- 
plete memorandum,  they  will  be  insufficient  to  satisfy  the  stat- 
ute.4 

§428.  Letters. —  Letters  may  be,  and  constantly  are,  re- 
sorted to  for  the  purpose  of  supplying  the  necessary  note  or 
memorandum,  and  they  are  unquestionably  sufficient  as  such, 
either  alone  or  in  connection  with  other  instruments,  if,  with- 

i il  When  it  is  proposed  to  prove  the  biguity."  Thesiger,  L.  J.,  in  Bauman 
existence  of  a  contract  by  several  v.  James,  3  Ch.  508.  To  like  effect: 
documents,  it  must  appear  upon  the  Long  v.  Millar,  4  C.  P.  Div.  450:  Cave 
face  of  the  instrument,  signed  by  the  v.  Hastings,  7  Q.  B.  Div.  125;  Shard- 
party  to  be  charged,  that  reference  low  v.  Cotterell,  18  Ch.  D.  280;  Wilk- 
is  made  to  another  document,  and  inson  v.  Taylor  Mfg.  Co.,  67  Miss.  231, 
this  omission  cannot  by  supplied  by  7  S.  R.  356;  Turner  v.  Lorillard  Co., 
verbal  evidence.  If,  however,  it  ap-  100  Ga,  645,  28  S.  E.  R.  383. 
pears  from  the  instrument  itself  that  In  Oliver  v.  Hunting,  44  Ch.  Div. 
another  document  is  referred  to,  that  205,  parol  evidence  was  admitted  to 
document  may  be  identified  by  ver-  show  the  relations  and  situation  of 
bal  evidence.  A  simple  illustration  the  parties,  from  which  it  appeared 
•of  this  rule  is  given  in  Ridgeway  v.  that  a  letter  written  by  one  referred 
Wharton,  6  H.  L.  Cas.  238.  There 'in-  to  a  previous  memorandum  of  sale, 
structions '  were  referred  to;  now  in-  2  See  cases  cited  in  preceding  note, 
structions  may  be  either  written  or  See  also  Ansley  v.  Green,  82  Ga.  181; 
verbal;  but  it  was  held  that  parol  Mohr  v.  Dillon,  80  Ga.  572. 
evidence  might  be  adduced  to  show  3  Cooper  v.  Smith,  15  East,  103; 
that  certain  instructions  in  writing  Richards  v.  Porter,  6  B.  &  C.  437; 
were  intended.  This  rule  of  inter-  Smith  v.  Surman,  9  B.  &  C.  561; 
pretation  is  merely  a  particular  ap-  Archer  v.  Baynes,  5  Ex.  625. 
plication  of  the  doctrine  of  latent  am-  4  Taylor  v.  Smith,  [1893]  2  Q.  B.  65. 

357 


428.] 


LAW    OF    SALE. 


[book 


out  the  aid  of  parol  testimony,  the  parties,  the  subject-matter 
and  the  terms  of  the  contract  may  be  collected  from  them.1 
A  letter  making  a  proposition  and  a  letter  accepting  it  present 
a  plain  case.2  And  even  a  letter  written  to  repudiate  an  agree- 
ment or  countermand  an  order,  the  terms  of  which  it  stated  or 
referred  to,  has  been  held  a  sufficient  memorandum  to  sustain 
the  agreement.3 


i  Austin  v.  Davis,  128  Ind.  472,  25 
Am.  St.  R.  45G;  Wills  v.  Ross,  77  Ind. 
1,  40  Am.  R.  279;  Lee  v.  Cherry,  85 
Tenn.  707,  4  Am.  St.  R.  800;  Francis 
v.  Barry,  69  Mich.  311  (citing  Allen 
v.  Bennet,  3  Taunt.  169;  Jackson  v. 
Lowe,  1  Bing.  9;  Dobell  v.  Hutchin- 
son, 3  Ad.  &  E.  355;  Jones  v.  Will- 
iams, 7  M.  &  W.  493;  Telegraph  Co. 
v.  Railroad  Co.,  86  111.  246;  Moore  v. 
Mountcastle,  61  Mo.  424;  Abbott  v. 
Shepard,  48  N.  H.  14);  Beckwith  v. 
Talbot,  2  Colo.  639;  Doughty  v.  Man- 
hattan Brass  Co.,  101  N.  Y.  644;  Smith 
v.  Colby,  136  Mass.  562;  Linsley  v. 
Tibbals,  40  Conn.  522;  Brown  v. 
Whipple,  58  N.  H.  229;  Jenness  v. 
Mt.  Hops  Iron  Co.,  53  Me.  20;  Thames, 
etc.  Co.  v.  Beville,  100  Ind.  309;  Mizell 
v.  Burnett,  4  Jones  (N.  C),  249,  69 
Am.  Dec.  744.  See  also  Cunningham 
v.  Williams,  43  Mo.  App.  629;  Pitcher 
v.  Lowe,  95  Ga.  423,  22  S.  E.  R.  678. 

2  Gulf.  etc.  Ry.  Co.  v.  Settegast,  79 
Tex.  256;  Kenney  v.  Hews,  26  Neb. 
213;  Wilkinson  v.  Taylor  Mfg.  Co.. 
67  Miss.  231,  7  S.  R.  356. 

3  Drury  v.  Young,  58  Md.  546,  42 
Am.  R.  343;  Louisville  Asphalt  Co. 
v.  Lorick,  29  S.  C.  533,  2  L.  R.  A.  212. 
See  also  Wilson  v.  Lewiston  Mill  Co., 
150  N.  Y.  314,  44  N.  E.  R.  959,  55  Am. 
St.  R.  680;  Elliott  v.  Dean,  Cab.  &  El. 
283;  Martin  v.  Haubner,  26  Canada 
Sup.  R.  142. 

In  Louisville  Asphalt  Varnish  Co. 
v.  Lorick,  supra,  defendants  gave  an 


order  for  paint  to  plaintiff's  travel- 
ing salesman,  who  entered  it  in  his- 
book  and  sent  a  copy  of  it  to  plaint- 
iff. The  day  after  giving  the  order 
defendants  wrote  to  plaintiff  not  to 
ship  paint  "ordered  through  your 
salesman.  We  have  concluded  not 
to  handle  it."  This  letter  was  not 
received  until  plaintiff  had  shipped 
the  paint.  Held,  that  this  letter  suf- 
ficiently referred  to  the  order,  which 
stated  the  terms,  as  to  furnish  a  good 
note  or  memorandum. 

In  Bailey  v.  Sweeting,  9  C.  B.  (N.  S.) 
843,  the  defendant  wrote  to  plaintiff 
describing  the  goods  he  had  previ- 
ously ordered  and  giving  the  price, 
but  saying,  "Which  goods  I  have 
never  received,  and  have  long  since 
declined  to  have."  Held,  a  sufficient 
memorandum. 

In  Wilkinson  v.  Evans,  L.  R.  1  C.  P. 
407,  the  defendant  wrote,  on  the  back 
of  the  invoice,  a  letter  to  the  plaint- 
iff in  which  he  refused  the  goods  be- 
cause they  were  badly  crushed.  Held, 
a  sufficient  memorandum. 

In  Leather  Cloth  Co.  v.  Hieroni- 
mus,  L.  R.  10  Q.  B.  140,  the  defend- 
ant wrote  a  letter  to  plaintiff  admit- 
ting the  purchase  and  referring  to 
the  plaintiff's  letter  containing  the 
invoice,  but  repudiating  any  liabil- 
ity, as  the  goods  had  been  sent  by  a 
wrong  route.     Held,  sufficient. 

See,  to  same  effect,  Saunderson  v. 
Jackson,  2  B.  &  P.  238;  Cave  v.  Hast- 


358 


CH.  VII.]  CONTRACT    UNDER   STATUTE   OF   FRAUDS.       [§§  429-432. 

§  429.  Telegrams. —  So  the  note  or  memorandum  may  be 
wholly  or  partly  found  in  telegrams,1  provided  that  they,  like 
other  instruments,  embrace  the  essentials  of  the  contract,2  —  a 
subject  more  fully  discussed  in  the  next  subdivision.  That 
telegrams  shall  have  this  effect  is  expressly  provided  by  statute 
in  several  of  the  States/  and,  in  general,  telegrams  are  given  the 
same  effect  as  letters. 

§  430.  Books. —  So  the  memorandum  may,  of  course,  consist 
of  entries  in  trade,4  broker's5  or  private  memorandum6  books, 
or  of  writing's  of  any  nature,  however  informal,  so  long  as  they 
possess  the  necessary  requisites. 

§  431.  Records  of  corporate  meetings. —  Entries  in  the  rec- 
ord books  of  private  and  municipal  corporations  of  resolutions 
and  other  actions  had  at  corporate  meetings,  when  signed  by 
the  clerk  and  containing  the  essential  elements  of  the  contract, 
are  sufficient  to  satisfy  this  requirement  of  the  statute.7 

§  432.  Not  necessary  that  memorandum  be  addressed  to 
or  pass  between  the  parties. —  It  is  not  necessary  that  the  note 

ings,  L.  R.  7  Q.  B.  Div.  125;  Dobell  v.  *  Newell  v.  Radford,  L.  R.  3  C.  P. 

Hutchinson,  3  Ad.  &  E.  355.  52;  Vandenbergh  v.  Spooner,  L.  R.  1 

But  a  letter  referring  to  "condi-  Ex.  316;  Sari  v.  Bourdillon,  1  C.  B. 

tions  of  sale,"  but  not  stating  them,  (N.  S.)  188. 

is  insufficient.     Riley  v.  Farnsworth,  5Coddington  v.  Goddard,  16  Gray 

116  Mass.  23a  (Mass.),  436. 

i  Trevor  v.  Wood,  36  N.  Y.  307,  93  «  Wiener  v.  Whipple,  53  Wis.  298, 

Am.  Dec.  511;  Wells  v.  Railway  Co.,  40  Am.  R.  775;  Champion  v.  Plum- 

30  Wis.  605;  King  v.  Wood,  7  Mo.  389;  mer,  4  B.  &  P.  252;  Allen  v.  Bennett, 

Little  v.  Dougherty,  11  Colo.  103.  3  Taunt.  169. 

-  Watt  v.  Wisconsin  Cranberry  Co.,  7  Argus  Co.  v.  City  of  Albany,  55 

6a  Iowa,  730, 18  N.  W.  R.  898;  Whaley  N.  Y.  495,  14  Am.  R.  296;  Johnson  v. 

v.  Hinchman,  22  Mo.  App.  483;  North  Trinity  Church.  11  Allen  (Mass.),  123; 

v.  Mendel,  73  Ga.  400,  54  Am.  R.  879;  Tufts  v.    Plymouth  Mining  Co.,  14 

Lincoln  v.  Erie  Preserving  Co.,  132  Allen  (Mass.),  407;  Chase  v.  City  of 

Mass.  129.  Lowell,  7  Gray  (Mass.),  33;  Dykers  v. 

3  As  in  California,  Nevada,  Oregon  Townsend,  24  N.  Y.  57. 
and  Utah. 

359 


§§  433,  434.  J  law  of  sale.  [book  t. 

or  memorandum  be  a  writing  addressed  to  or  passing  between 
the  parties.  Thus  a  letter  written  by  defendant  to  bis  own 
agent,1  or  to  his  principal,2  or  to  a  third  person,3  is  enough. 

b.  "What  Note  or  Memorandum  is  Sufficient. 

§  433.  The  requisites  in  general. —  To  satisfy  the  require- 
ments of  the  statute,  the  note  or  memorandum  must,  in  general 
terms,  contain  a  statement  of  all  of  the  essential  terms  of  the 
contract,  naming  or  describing  with  reasonable"  certainty  the 
parties  thereto;  describing  or  furnishing  reasonably  certain 
means  for  identifying  the  property;  stating  the  price,  when 
agreed  upon,  or  showing  the  data  from  which  it  may  be  ascer- 
tained; and  setting  forth  all  of  the  essential  terms,  as  to  time 
and  place  of  payment  and  delivery,  the  terms  of  credit,  or 
other  incidents  of  the  agreement.4  It  must  also  be  a  note  or 
memorandum  of  the  entire  contract  and  not  simply  of  the 
major  portion  of  it.5 

Following  this  general  rule  more  fully  into  its  details,  we 
have — ■ 

§  434.  Parties  must  be  named  or  described. —  And  first  it 
may  be  noticed  that  the  note  or  memorandum  should  name  both 
buyer  and  seller,  or  describe  them  with  reasonable  certainty,6 

1  Gibson  v.  Holland,  L.R1C.P.1;  salesman  who  showed  me  the  goods. 

Spangler  v.   Danforth.   65    111.    152;  Please  put  them  up  in  fine  shape  as 

Wood  v.  Davis,  82  111.  811;   Lee  v.  promptly  as  possible,"  was  an  insuf- 

Cherry,  85  Tenn.  707,  4  Am.  St.  R.  flcient  memorandum  to  satisfy  the 

800.     Contra,  Steel  v.  Fife,  48  Iowa,  statute. 

99,  30  Am.  R.  388.  «  Champion  v.  Plummer,  4  B.  &  P. 

2Peabody  v.  Speyers,  56  N.  Y.  230.  252;  Allen  v.  Bennett,  3  Taunt.  169; 

3  Browne  on  Stat,  Frauds,  §  354a.  Williams  v.  Lake,  2  E.  &  E.  349;  Me- 

4  See  cases  cited  in  following  sec-  Elroy  v.  Seery,  61  Md.  389,  48  Am.  R. 
tions.  110;  McGovern   v.    Hern,    153  Mass. 

&  CJoud  v.  Greasley,  125  111.  313.  So  308,  25  Am.  St.  R.  832,  10  L.  R.  A.  815, 

in  Sheley  v.  Whitman,  67  Mich.  397,  26  N.  E.  R.  861;  Lewis  v.  Wood,  153 

34  N.  W.  R.  879,  it  was  held  that  a  Mass.  321,  25  Am.  St.  R.  634,  n.,  11  L. 

clause  in  a  letter,  "you  may  place  the  R.  A.  143,  26  N.  E.  R.  862;  Williams 

gas  fixtures  I  selected  to-day.     The  v.  Byrnes,  1  Moore,  P.  C.  (N.  S.)  154; 

dining-room  fixtures  may  as  well  be  Vandenbergh    v.   Spooner,    L.   R.   1 

changed   as  talked  over   with  the  Exch.  316;  Fessenden  v.  Mussey,  11 

360 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF   FRAUDS. 


[§  434. 


and  should  distinguish  the  one  from  the  other,1  and  for  this 
purpose  parol  evidence  may  be  received  to  show  the  relation  of 


Cush.  (Mass.)  127;  Coddington  v. 
Goddard,  16  Gray  (Mass.),  436;  Lin- 
coln v.  Erie  Preserving  Co.,  132  Mass. 
129;  Grafton  v.  Cummings,  99  U.  S. 
100;  Nichols  v.  Johnson,  10  Conn. 
192;  Sherburne  v.  Shaw,  1  N.  H.  157, 
8  Am.  Dec.  47;  Ross  v.  Allen,  45  Kan. 
331.  10  L.  R.  A.  835;  Mentz  v.  New- 
wit  ter,  122  N.  Y.  491,  25  N.  E.  R.  1044, 
11  L.  R.  A.  97;  Knox  v.  King.  36  Ala. 
367;  Clampet  v.  Bells,  39  Minn.  272; 
Anderson  v.  Harold.  10  Ohio,  399; 
Sabre  v.  Smith,  62  N.  H.  663;  Peoria 
Grape  Sugar  Co.  v.  Babcock,  67  Fed. 
R.  892. 

i  Frank  v.  Eltringham,  65  Miss.  281, 
3  S.  R.  665. 

A  memorandum  in  a  broker's 
book,  unsigned,  as  follows:  i'Sold 
Huguet,  for  J.  Ogden  &  Co.,"  etc., 
does  not  show  who  was  the  seller 
and  who  the  buyer,  Ogden  &  Co. 
being  the  parties  alleged  to  be  the 
buyers.  Bailey  v.  Ogden,  3  Johns. 
(N.  Y.)  399,  3  Am.  Dec.  509. 

A  memorandum  as  follows: 
"Bought  of  W.  Plummer,*'  etc.,  but 
not  signed  by  anybody,  is  not  suffi- 
cient, as  it  does  not  show  who 
bought  the  goods.  Champion  v. 
Plummer,  4  Bos.  &  Pul.  252. 

A  note  of  an  order  given  to  plaint- 
iffs' traveling  salesman,  made  by 
him  in  his  memorandum  or  order- 
book,  as  follows:  "T.  F.  Hall  &  Co., 
88  South  Charles  Street,  Baltimore, 
Maryland,"  followed  by  a  list  of  the 
goods,  etc.,  is  not  enough,  not  being 
signed  by  any  one  as  seller  nor  other- 
wise showing  who  the  seller  was. 
McElroy  v.  Seery,  61  Md.  389, 48  Am. 
R  110. 

Three  telegrams  as  follows:  "Tel- 
egraph how  much  corn  you  will  sell, 


with  lowest  cash  price;"  answer: 
"Three  thousand  cases,  one  dollar 
five  cents,  open  one  week;"  reply: 
"Sold  corn,  will  see  you  to-morrow," 
do  not  show  who  the  buyer  is,  and 
are  therefore  insufficient.  Lincoln 
v.  Erie  Preserving  Co.,  132  Mass.  129. 

In  Coddington  v.  Goddard.  16  Gray 
(Mass.),  436,  the  memorandum  was: 
"9th.  W.  W.  Goddard  to  T.  B.  Cod- 
dington &  Co.,  20,000  pounds  Chili 
pig  copper,"  etc.  Said  the  court :  "  It 
is  objected  that  the  memorandum 
made  by  the  broker  in  the  present 
case  was  insufficient  to  take  the  case 
out  of  the  operation  of  the  statute. 
because  it  does  not  show  who  were 
the  vendor  and  vendee  of  the  mer- 
chandise. This  would  be  a  fatal  ob- 
jection if  it  were  well  founded;  for 
although  a  memorandum  of  this  nat- 
ure may  be  very  brief,  it  must  nev- 
ertheless show  with  reasonable  cer- 
tainty who  were  the  parties  to  the 
contract,  and  the  terms  of  the  sale, 
so  that  they  may  appear  from  the 
writing  itself.  But  in  the  present 
case  the  entry  is  perfectly  intelligible 
and  free  from  doubt.  If  it  is  read 
with  reference  to  the  book  in  which 
it  is  made,  as  an  entry  by  a  broker 
in  the  regular  course  of  his  business 
as  an  agent  of  third  parties  for  the 
purchase  and  sale  of  goods,  it  clearly 
indicates  a  sale  from  defendant  to 
the  plaintiff.  It  is  susceptible  of  no 
other  interpretation." 

In  Butler  v.  Thompson,  92  U.  S. 
412.  it  was  held  that  a  memorandum 
as  follows:  "Sold  for  Messrs.  Butler 
&Co..  Boston,  to  Messrs.  A.  A.  Thomp- 
son &  Co.,  New  York,"  etc.,  was  a 
sufficient  memorandum  not  only  of 
the  obligation  of  Butler  &  Co.  to  sell, 


361 


§  435.]  LAW  OF  SALE.  [BOOK  I. 

the  parties.1  They  need  not  be  expressly  named.  It  is  enough 
that  they  are  described,  and  in  that  case  parol  evidence  is  ad- 
missible to  apply  the  description  and  identify  the  persons 
meant.2  But  where  the  parties  are  neither  named  nor  so  de- 
scribed, parol  evidence  is  not  admissible  to  show  who  they  were.3 

§  435,  What  description  sufficient. —  Merely  to  refer 

to  the  persons  selling  as  vendors  is  not  enough,4  though  a  de- 
scription by  the  term  "  proprietor,"5  or  "  trustee  selling  under  a 

but  also  of  the  reciprocal  obligation  In  Sanborn  v.  Flagler,  9  Allen,  474, 
of  Thompson  &  Co.  to  buy.  Adams'   Cas.   685,  the   note   began, 

iln  Newell  v.  Radford,  L.  R.  3  C.  "'Will  deliver  S.  R.  &  Co.,"  and  was 
P.  52,  the  memorandum  was  as  fol-  signed  "J.  H.  F.,  J.  B.  R."  Parol  evi- 
lows:  "Mr.  H.  32  sacks  culasses  at  dence  was  admitted  that  J.  B.  R.  was 
39s.,  280  lbs.,  to  wait  orders,"  signed  one  of  the  partners  in  S.  R.  &  Co., 
"John  Williams."  It  was  objected  and  signed  for  them,  and  that  J.  H.  F. 
that  this  was  insufficient  as  not  show-  were  the  initials  of  Flagler.  Held 
ing  who  was  purchaser  and  who  was    sufficient. 

seller.  Parol  evidence  was  allowed  -  McGovern  v.  Hern,  153  Mass.  308, 
of  the  situation  of  the  parties,  that  25  Am.  St.  R.  632,  10  L.  R.  A.  815,  26 
Williams  was  defendant's  agent  and  N.  E.  R.  861,  citing  Jones  v.  Dow,  142 
made  the  entry  in  plaintiff's  book.  Mass.  130,  140;  Catling  v.  King,  5  Ch. 
"The  plaintiff,"  said  the  court,  "was  Div.  660;  Rossiter  v.  Miller,  L.  R.  3 
a  baker,  who  would  require  flour,  and  App.  Cas.  1124,  1141,  5  Ch.  Div.  648. 
the  defendant  was  a  person  who  was  Where  the  parties  are  referred  to 
in  the  habit  of  selling  it,"  and  the  by  fictitious  names,  parol  evidence  is 
memorandum  was  held  sufficient.       admissible  to  identify  them.    Bibb  v. 

In  Salmon  Falls  Mfg.  (Jo.  v.  God-  Allen,  149  U.  S.  481,  496. 

dard,  55  U.  S.  ( 14  How.)  446,  the  mem-       3  Mentz  v.  Newwitter,  122  N.  Y.  491, 

orandum  was:  25  N.  E.  R.  1044, 11  L.  R.  A.  97, 19  Am. 

"  Sept.  19— W.  W.  Goddard,  12  mos.   St.  R.  514;  North  v.  Mendel,  73  Ga. 

300  bales  S.  F.  drills  -      7±  400,  54  Am.  R.  879.     (In  this  case  the 

100  cases  blue     do     -      C£  entry  was,  "  Sold  account  of  C.  H. 

R.  M.  M.  North  &  Co.,  Mendel,"  etc.  The  word 

W.  W.  G."       "  Mendel "  was  said  to  mean  the  firm 

Parol  evidence  was  permitted  that  of  "M.  Mendel  &  Brother,"  but  the 

"R.  M.  M."  signed  for  M.  &  S.,  who  court  said  that  could  only  be  made 

were  agents  of  plaintiff,  and  that  apparent  by  resort  to  parol  evidence, 

Goddard  signed  "W.  W.  G.,"  and  the  which    was    inadmissible,  and    the 

memorandum  was  held  good.     Two  memorandum    was    therefore    held 

judges  dissented.      But  this  use  of  insufficient.) 

parol  proof  was  criticised  in  Grafton       4  McGovern  v.  Hern,  153  Mass.  308, 
v.  Cummings,  99  TJ.  S.  100,  and  de-  25  Am.  St.  R.  632,  10  L.  R.  A.  815; 
clared  to  be  "  clearly  in  conflict  with  Potter  v.  Duffield,  L.  R.  18  Eq.  4. 
the  general  current  of  authority"  in       5Sale  v.  Lambert,  L.  R.   18  Eq.  1; 
Mentz  v.  Newwitter,  post.  Rossiter  v.  Miller,  5  Ch.  Div.  648. 

362 


CII.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  4:36,437. 

trust  for  sale,"1  has  been  held  sufficient,  because  it  is  always 
possible  in  such  cases  to  ascertain  from  the  records  who  the 
parties  are  who  answer  the  description.  But,  as  is  said  by  Sir 
G.  Jessel,  M.  It.,  "  the  court  ought  to  be  careful  not  to  manu- 
facture descriptions,  or  to  be  astute  to  discover  descriptions 
which  a  jur}^  could  not  identify,  for,  as  I  understand  it,  at  law 
that  would  be  a  question  for  a  jury." 2 

It  is  not  necessary  that  the  christian  name  or  the  initials  bo 
given,  but  a  party  is  sufficiently  described  as  "  Mr.  Lee."  This 
is,  at  most,  a  latent  ambiguity,  which  may  be  resolved  by  parol.* 

§436.  Agent  named  instead  of  principal. —  ft  is  no 

objection  to  the  sufficiency  of  the  memorandum  that  the  party 
named  therein  as  Imyeror  seller  is  but  an  agent  of  the  real 
party  in  interest,  as  the  latter  may  always  sue  or  be  sued  <>n 
the  contract  made  by  his  agent  in  his  behalf.4  But  the  mere 
fact  that  certain  persons  are  named  in  the  memorandum  of  sale 
as  auctioneers  does  not  sufficiently  show  that  they  are  agents 
of  the  sellers  within  this  rule.5 

§  437.  Goods  sold  must  be  stated  or  described. —  The  note 
or  memorandum  must  also  show  what  goods  were  sold  and  in 
what  quantities.  This  rule  requires  that  the  goods  sold  shall 
be  set  out  either  by  name  or  by  such  description  as  will  enable 
them  to  be  ascertained  without  other  recourse  to  parol  evi- 
dence than  to  identify  the  goods  or  apply  the  description  to 
them.6 

1  Catling  v.  King,  5  Ch.  Div.  660.  BMcGovern  v.  Hern,  supra. 

-'In   Commins  v.   Scott,   L.  R.  20  6  North  v.  Mendel,  73  (ia.    Inn.  54 

Eq.  11.  Am.  R  879:  Clampet  v.  Bells,  39  Minn. 

s  Lee  v.  Cherry,  85  Tenn.  TOT,  4  Am.  272;    Waterman   v.   Meigs,    4    Cush. 

St.  R.  800.  (Mass.:  497;  May  v.  Ward.  134  Mass. 

♦Mechem  on  Agency,  g§  429,  T01;  12T:  New  England  Dressed  Meat  & 

Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  Wool  Co.  v.  Standard  Worsted  Co., 

How.   (U.  S.)  446:  Gowen  v.  Klous,  165  Mass.  328,  43  N.  E.  R,  112,52  Am. 

101  Mass.  449;  Sanborn  v.  Flagler,  9  St.  R.  516;  Pulse   v.  Miller,  81    Ind. 

Allen  (Mass.),  474;  McGovemv.  Hern,  190:  Holmes  v.  Evans,  4s  Miss.  247, 

153  Mass.   308,  25  Am.  St.  R.  632,  10  12  Am.  R  372:  Eggleston  v.  Wagner, 

L.  R,  A.  815.  46  Mich.  610,  10  N.  W.  R.  3T;  Heffron 

363 


§  438.] 


LAW   OF    SALE. 


[book 


§  438.  The  price  must  be  shown. —  The  price  also  is  an  es- 
sential element,  and,  where  it  has  been  fixed,  the  note  or  mem- 
orandum must  show  the  price  or  furnish  the  data  from  which 
it  maybe  ascertained; l  otherwise  it  must  appear  that,  the  price 


v.  Armsby,  61  Mich.  505,  28  N.  W.  R. 
672;  Peoria  Grape  Sugar  Co.  v.  Bab- 
cock,  67  Fed.  R.  892. 

In  North  v.  Mendel,  supra,  the 
memorandum  was:  "Sold  account 
of  C.  H.  North  &  Co.,  Mendel,  5 
bellies  8."  The  words  "  5  bellies  8  " 
were  alleged  to  mean  five  boxes  of 
pork  bellies  at  eight  cents  per  pound. 
Held,  insufficient. 

In  New  England  Dressed  Meat  & 
Wool  Co.  v.  Worsted  Co.,  supra,  the 
memorandum  was:  "  Bought  of  New 
Eng.  D.  M.  &  W.  Co.  about  2000  to 
2500  lbs.  F  C  and  all  they  make  for 
thirty  days."  The  court  said :  "The 
most  doubtful  question  arising  on 
the  memorandum  is  whether  the 
words  'about  2000  to  2500  lbs.  F  C,' 
taken  in  connection  with  the  words 
following,  'and  all  they  make  for 
thirty  days,' etc.,  is  a  sufficient  desig- 
nation of  the  property  sold.  The 
rule  is  that  the  goods  must  be  desig- 
nated in  the  writing,  and  cannot  be 
shown  by  parol.  .  .  .  But  we  have 
no  doubt  that  the  meaning  of  the 
letters  'F  C,'  which  are  technical 
abbreviations  used  in  the  wool  trade, 
may  be  shown  by  parol,  as  well  when 
they  appear  in  a  memorandum  re- 
lied on  under  the  statute  of  frauds 
as  in  any  other  writing.  Where 
parol  evidence  is  not  competent  to 
contradict  or  vary  the  terms  of  such 
a  memorandum  to  show  what  is  in- 
tended, we  are  of  opinion  that  the 
situation  of  the  parties  and  the  sur- 
rounding circumstances  at  the  time 
when  the  contract  was  made  may 
be  shown  to  apply  the  contract  to 


the  subject-matter.  Upon  this  point 
the  decision  in  Macdonald  v.  Long- 
bottom,  1  El.  &  El.  987,  which  was 
concurred  in  by  all  the  judges  sit- 
ting in  the  exchequer  chamber,  is 
an  authority  which  fully  covers  the 
present  case.  When  it  is  shown  who 
and  where  the  parties  were  at  the 
time  of  making  the  contract,  and 
what  property  the  plaintiff  had  on 
hand  of  the  kind  described,  it  is 
clear,  without  more,  that  the  mem- 
orandum referred  to  the  2,443  pounds 
of  wool  on  hand  recently  manufact- 
ured and  to  the  additional  amount 
which  might  be  manufactured  within 
the  thirty  days.  See  Mead  v.  Par- 
ker, 115  Mass.  413;  Hurley  v.  Brown, 
98  Mass.  545;  Scanlan  v.  Geddes,  112 
Mass.  15;  Slater  v.  Smith,  117  Mass. 
96;  Nichols  v.  Johnson,  10  Conn.  192; 
Waring  v.  Ayres,  40  N.  Y.  357;  Cole- 
rick  v.  Hooper,  3  Ind.  316." 

A  telegram  to  a  hop  dealer,  by  his 
agent  W.,  stating:  "  Bought  thirteen 
at  eleven  five-eighths  net  you;  con- 
firm purchase  by  wire  to  B.;"  with 
a  reply  by  the  dealer  sent  to  B. :  "We 
confirm  purchase  W. eleven  five-eight 
cent,  like  sample,"  constitute  a  suf- 
ficient memorandum,  where  it  can 
be  shown  by  parol  evidence  that,  ac- 
cording to  the  usages  of  the  hop  busi- 
ness, the  words  were  understood  by 
the  parties  to  mean  an  agreement  to 
purchase  a  certain  quantity  of  hops 
of  a  certain  grade  for  a  certain  price. 
Brewer  v.  Horst- Lachmund  Co.  (1900), 
127  Cal.  643,  60  Pac.  R.  418. 

1  Hanson  v.  Marsh,  40  Minn.  1  (cit- 
ing Elmore  v.  Kingscote,  5  B.  &  C. 


364 


OH.  VII.]  CONTRACT    UNDER    STATUTE   OF   FRAUDS.       [§§  439,  440. 


was  left  to  be  determined  afterward,  as  by  the  market  or  rea- 
sonable value,  or  by  valuers,  or  the  like,1 —  methods  which  have 
already  been  considered.2 

§  439.  Terms  of  credit  or  particular  mode  of  payment 
must  be  stated. —  Where  no  terms  of  credit  are  agreed  upon, 
the  sale  will  be  deemed  to  be  one  for  cash  on  delivery,  and 
this  therefore  need  not  be  stated.3  But  where  a  term  of  credit 
is  agreed  upon,  or  a  particular  mode  or  time  of  payment  is  fixed, 
it  is  an  essential  element  of  the  sale,  and  a  memorandum  which 
does  not  state  the  fact  is  insufficient.4 

§  440.  Time  and  place  of  delivery,  if  agreed  upon,  must  be 
stated. —  It  is  not  essential  to  a  contract  of  sale  that  the  time 
or  place  of  delivery  should  be  stipulated,  but,  if  they  are  ex- 


583;  Acebal  v.  Levy,  10  Bing.  376; 
Goodman  v.  Griffiths,  1  H.  &  N.  574: 
Ide  v.  Stanton,  15  Vt.  685,  40  Am. 
Dec.  6!»^:  Waterman  v.  Meigs,  4  Cush. 
(Mass.)  497;  Ashcroft  v.  Butterworth, 
L36  Mass  511;  Stone  v.  Browning.  68 
N.  Y.  598;  James  v.  Muir,  33  Mich. 
223);  Smith  v.  Arnold,  5  Mason  (U.  S. 
C.  C.)  414;  Phelps  v.  Stillings,  60  N. 
H.  505;  Adams  v.  McMillan,  7  Port, 
(Ala.)  73;  Soles  v.  Hickman,  20  Pa. 
St.  180;  Sabre  v.  Smith,  62  N.  H.  663; 
Heffron  v.  Armsby,  61  Mich.  505,  28 
X.  W.  R.  672;  Peoria  Grape  Sugar 
Co.  v.  Babcock,  67  Fed.  R.  892:  Tur- 
ner v.  Lorillard  Co.,  100  Ga.  645,  28  S. 
E.  R.  383;  Reid  v.  Diamond  Plate- 
Glass  Co.,  54  TJ.  S.  App.  619,  29  C.  C. 
A.  110.  85  Fed.  R.  193.  See  also  Web- 
ster v.  Brown,  67  Mich.  328. 

'Valpy  v.  Gibson,  4  C.  B.  837; 
Hoadly  v.  McLaine,  10  Bing.  482; 
Ashcroft  v.  Morrin,  4  M.  &  G.  450; 
O'Neil  v.  Crain,  67  Mo.  200. 

2  See  ante,  §§  207-213. 

3  Wood  on  Stat.  Frauds,  p.  656. 

4  Browne  on  Stat.   Frauds,  §  382 


[citing  Morton  v.  Dean,  13  Mete. 
(Mass.)  385;  Davis  v.  Shields,26  Wend. 
(N.  Y.)  341;  McFarsons  Appeal,  11 
Pa.  St.  503;  Soles  v.  Hickman,  20  Pa. 
St.  180;  Buck  v.  Pickwell,  27  Vt. 
157];  Norris  v.  Blair,  39  Ind.  90,  10 
Am.  R,  135;  Wardell  v.  Williams, 
62  Mich.  50,  28  N.  W.  R.  796,  4  Am. 
St,  R.  814;  Lester  v.  Heidt,  86  Ga. 
226,  10  L.  R.  A.  108,  12  S.  E.  R.  214. 

In  Norris  v.  Blair  the  sale  was 
upon  a  term  of  credit  of  nine  months, 
by  giving  note  with  security  and 
waiving  valuation  and  appraisement 
laws,  but  the  memorandum  did  not 
show  this;  held,  insufficient.  In  War- 
dell v.  Williams  a  part  of  the  pur- 
chase was  to  be  secured  by  a  mort- 
gage to  contain  a  clause  authorizing 
the  release  of  lots  on  the  payment  of 
a  valuation,  but  the  memorandum 
did  not  show  the  valuation;  held,  in- 
sufficient. In  Lester  v.  Heidt  the 
memorandum  stated  the  price  to 
be  cash  on  terms  agreed  upon,  but 
did  not  state  the  terms;  held,  insuffi- 
cient. 


365 


§§  44:1-443.]  LAW   OF   SALE.  [book    I. 

pressly  agreed  upon,  they  thus  become  material  parts  of  the 
agreement,  and  a  note  or  memorandum  which  does  not  include 
them  is  defective.1 

§  441.  All  other  material  terms  must  be  included.— And 

the  note  or  memorandum  must  also  contain  any  other  special 
terms  or  conditions,  such  as  a  right  of  rejection  if  not  ap- 
proved,2 or  a  special  warranty,3  which  the  parties  have  made  a 
part  of  their  contract.  It  is  not  enough  that  it  is  a  note  or 
memorandum  of  the  greater  part  of  the  contract:  it  must  be  a 
note  or  memorandum  of  the  whole  of  it.4 

§  442.  Consideration  need  not  be  stated  unless  required 
by  statute.—  The  statute  in  some  cases,  as  in  Oregon,  expressly 
requires  that  the  consideration  of  the  contract  must  be  ex- 
pressed in  the  note  or  memorandum,  and  such  a  requirement 
must,  it  is  held,  be  complied  with  to  render  the  note  or  memo- 
randum sufficient.5  In  several  of  the  statutes  it  is  expressly 
declared  that  the  consideration  need  not  be  stated.  In  the  ma- 
jority of  the  States,  however,  the  statute  is  silent  upon  the  sub- 
ject, but  it  is  quite  universally  held  in  such  cases  that  the 
statement  of  the  consideration  is  not  essential. 

§443.  Memorandum  must  show  complete  contract.— In- 
asmuch as  it  is  the  note  or  memorandum  which  gives  the  prior 
parol  contract  its  legal  force,  it  follows  that  to  make  a  com- 
plete contract  it  is  essential  that  the  note  or  memorandum  must 
be  complete.  Thus,  it  is  essential  that  the  terms  be  agreed 
upon  with  certainty,  and  that  the  parties  assent  to  the  same 
thing  in  the  same  sense;6  and  if  it  appears  from  the  note  or 

i  Browne,  Stat.  Frauds,  §  384  [cit-        2  Boardman  v.  Spooner,  13   Allen 
ing  Davis  v.  Shields,  supra;  Gault  v.     (Mass.),  353,  90  Am.  Dec.  196. 
Stormont,  51  Mich.  G38,  17  N.  W.  R.        3  Peltier  v.  Collins,  3  Wend.  (N.  Y.) 
214;  Smith  v.  Shell,  82  Mo.  215,  52    459,  20  Am.  Dec.  711;  Newberry  v. 
Am.  R.  365  (followed  in  Lehenbeuter    Wall,  65  N.  Y.  484 
Co.  v.   McCord,   65    Mo.   App.    507);        4  Cloud  v.  Greasley.  125  111.  313. 
Salmon  Falls  Mfg.  Co.  v.  Goddard,  14        5  Corbitt  v.  Salem  Gas  Light  Co.,  6 
How.  (U.  S.)  446;  Kriete  v.  Myer,  61     Oreg.  405,  25  Am.  R.  541. 
Md.  5581  6  Breckinridge  v.  Crocker,  78  Cal. 

529;  Oakmanv.  Rogers,  120  Mass.  214. 
366 


€11.  VII.]  CONTRACT   UNDER    STATUTE   OF    FRAUDS.       [§§  444-44:6. 

memorandum  that  this  has  not  been  done,  or  that  some  of  the 
terms  have  not  yet  been  settled,1  or  if  the  note  or  memorandum 
refer  to  other  terms  agreed  upon  than  those  stated,2  such  a  note 
or  memorandum  will  fail  to  establish  an  enforceable  agree- 
ment. 

§  444.  Memorandum  must  import  a  sale.— The  memoran- 
dum must,  moreover,  be  such  as  to  import  a  sale,  rather  than 
some  other  agreement  or  arrangement.  Thus,  where  the  con- 
tract  asserted  was  a  sale  of  four  car-loads  of  corn,  but  the  mem- 
orandum relied  upon  was:  "  We  can  spare  you  four  car-loads  of 
corn.  If  nothing  prevents,  can  load  cars  in  about  two  weeks," 
the  court  held  it  insufficient;  saying  that  the  word  "spare" 
did  not  necessarily  or  usually  import  a  sale;  and  that  a  memo- 
randum, in  order  to  suffice,  must,  "in  its  very  terms,  import  a 
sale,  and  it  must  contain  all  the  essential  parts  of  the  bargain, 
and  they  must  be  clearly  deducible  from  it  without  resort  to 
the  parol  agreement."3 

§  445.  Parol  evidence  not  admissible  to  supply  deficiencies. 

It  must  also  be  kept  in  mind,  as  has  frequently  been  stated  in 
the  preceding  sections,  that  parol  evidence  is  not  admissible  to 
supply  deficiencies  or  omissions  in  the  note  or  memorandum.4 
It  may  be  resorted  to,  to  apply  descriptions,  to  aid  identifica- 
tion, or  to  explain  a  latent  ambiguity,  but  farther  than  this  it 
cannot  go. 

§  446,  Parol  evidence  not  admissible  to  contradict  com- 
plete note  or  memorandum  made  by  both  parties.— So,  on 

the  other  hand,  where  the  parties  have  deliberately  made  and 

i  Wardell  v.  Williams,  62  Mich.  50,  sRedus  v.  Holcomb  (1900),  —  Miss. 

4  Am.  St.  R.  814;  May  v.  Ward,  134  — ,  27  S.  R.  524. 

Mass.  127,  where  memorandum  re-  4  See  American  Oak  Leather  Co.  v. 

ferred    to    essential  terms    "to    be  Porter,  94  Iowa,  117,  62  N.W.  R.  658; 

agreed  upon."  Watt  v.  Wisconsin  Cranberry  Co.,  63 

°2  Riley  v.   Farnsworth,    116  Mass.  Iowa,  730,  18  N.  W.  R.  898;  Wilson  v. 

223,  where  memorandum  referred  to  Lewiston  Mill  Co.,  150  N.  Y.  314,  44 

the  "condition:  of  sale,"  but  did  not  N.  E.  R.  959,  55  Am.  St.  R.  680;  Frank 

state  them.  v.  Eltringham,  65  Miss.  281 ;  Rector 

367 


U7.] 


LAW    OF    SALE. 


[book 


delivered  a  note  or  memorandum  of  their  contract,  as  and  for 
a  complete  statement  of  its  essential  terms,  and  such  note  or 
memorandum  is  capable  of  a  clear  and  intelligible  interpreta- 
tion, it  must  be  regarded,  like  other  written  contracts,  as  the 
final  repository  of  their  agreement  and  conclusive  between 
them;  and  parol  evidence  is  therefore  inadmissible  to  contra- 
dict or  vary  its  terms  or  construction.1 

§  447.  .  Thus  it  is  not  competent,  by  parol,  to  add  to  or 

vary  the  terms  of  the  contract  by  showing  a  particular  time 
for  payment  or  delivery,  no  time  being  mentioned;  -  or  to  show 
that  the  sale  was  by  sample  where  that  did  not  appear; 3  or  to 
change  the  place4  or  time5  of  delivery  fixed  by  the  contract; 
or  to  prove  the  existence 6  or  the  waiver 7  of  a  warranty ;  or  a 
modification  of  a  stipulation  as  to  valuation;8  or  to  relieve  one 
party  from  personal  obligation  by  showing  that  he  was  simply 
the  agent  of  another  person,  though  parol  evidence  might  be 
admissible  to  charge  that  other  also.9 


Provision  Co.  v.  Sauer,  69  Miss.  235, 
13  S.  R.  623;  Redus  v.  Holcomb,  — 
Miss.  — ,  27  S.  R.  524 

i  Williams  v.  Robinson,  73  Me.  186, 
40  Am.  R.  352  [citing  Small  v.  Quincy, 
4  Me.  497;  Codclington  v.  Goddard,  16 
Gray  (Mass.),  436;  Hawkins  v.  Chace, 
19  Pick.  (Mass.)  502;  Ryan  v.  Hall,  13 
Mete.  (Mass.)  520;  Warren  v.  Wheeler, 
8  Mete.  (Mass.)  97;  Cabot  v.  Winsor, 
1  Allen  (Mass.),  546;  Remick  v.  Sand- 
ford,  118  Mass.  102] ;  Wiener  v.  Whip- 
ple, 53  Wis.  298,  40  Am.  R.  775  [cit- 
ing Meyer  v.  Everth,  4  Camp.  22; 
Gardiner  v.  Gray,  4  Camp.  144J;  Har- 
rison v.  McCormick,  89  Cal.  327,  26 
Pac.  R.  830,  23  Am.  St.  R.  469;  Thomp- 
son v.  Libby,  34  Minn.  374,  26  N.  W. 
R.  1;  McQuaid  v.  Ross,  77  Wis.  470; 
Gilbert  v.  Stockman,  76  Wis.  62,  44 
N.  W.  R.  845,  20  Am.  St.  R.  23;  State 
v.  Hoshaw,  98  Mo.  358:  Hills  v.  Rix, 
43  Minn.  543,  46  N.  W.  R.  297;  Burch 


v.  Augusta  R.  R.  Co.,  80  Ga.  296;  Hill 
v.  Blake,  97  N.  Y.  216. 

2  Williams  v.  Robinson,  73  Me.  186, 
40  Am.  R.  352. 

3  Wiener  v.  Whipple,  53  Wis.  298, 
40  Am.  R.  775;  Harrison  v.  McCor- 
mick, 89  Cal.  327,  26  Pac.  R.  830,  23 
Am.  St.  R  469;  Meyer  v.  Everth,  4 
Camp.  22. 

4  Moore  v.  Campbell,  10  Ex.  323; 
Stowell  v.  Robinson,  3  Bing.  N.  C. 
928;  Marshall  v.  Lynn,  6  M.  &  W. 
109;  Stead  v.  Dawber,  10  A.  &  E.  57. 

s  Noble  v.  Ward,  L.  R.  1  Ex.  117. 

6  Thompson  v.  Libby,  34  Minn.  374. 

7  Goss  v.  Nugent,  5  B.  &  Ad.  58. 

8  Harvey  v.  Grabham,  5  A.  &  E.  61 

9  Bulwinkle  v.  Cramer,  27  S.  C.  376 
3  S.  E.  R.  776,  13  Am.  St.  R.  645 
Higgins  v.  Senior,  8  M.  &  W.  834 
Nash  v.  Towne,  5  Wall.  (U.  S.)  689 
Jones  v.  Littledale,  6  Ad.  &  E.  486 
Mechem  on  Agency,  §§  429,  701. 


368 


CII.  VII.]  CONTRACT   UNDER    STATUTE    OF   FRAUDS.  [§  448. 

§  448.  But  defendant  may  show  note  or  memorandum  set 
up  by  plaintiff  to  be  incomplete.— But  the  rule  of  the  last 
section  does  not  conflict  with  that  which  permits  a  defendant 
to  show  by  parol  that  the  note  or  memorandum  relied  upon 
by  the  plaintiff  is  not  a  note  or  memorandum  of  any  previous 
parol  agreement  at  all,1  or  that  it  is  a  note  or  memorandum  of 
but  a  part  of  such  agreement.2  The  rule  of  the  last  section 
precludes  the  admission  of  parol  evidence  to  add  to,  contradict 
or  vary  the  written  agreement  deliberately  entered  into  by 
both  parties,  as  being  in  itself  their  agreement  and  not  merely 
as  a  memorandum  at  a  previous  parol  agreement  upon  which 
they  rely.  The  rule  of  the  present  section  permits  the  defend- 
ant to  show  that  what  is  set  up  as  such  a  note  or  memorandum 
as  will  render  the  previous  parol  agreement  enforceable  is  not 
a  complete  note  or  memorandum  of  that  agreement.  The  dis- 
tinction is  between  impeaching  a  written  agreement  upon 
which  the  party  relies  and  impeaching  a  note  or  memorandum 
of  the  previous  parol  agreement  upon  which  he  relies.3 

!Pym  v.  Campbell,  6  E.  &  B.  370;  to  bind  the  defendant  except  as  au- 

Wake  v.  Harrop,  6  H.  &  N.  768;  Hus-  thorized  by  him,  and  that  parol  evi- 

sey  v.  Home-Payne,  4  App.  Cas.  311,  denee  was  admissible  to  show  what 

p.   320;   Coddington   v.  Goddard,  10  the  authority  was.    Said  the  court: 

Gray  (Mass.),  436.  "  It  would  seem  to  follow  as  a  nec- 

2  Pitts  v.  Beckett,  13  M.  &  W.  743;  essary  consequence  that  evidence  of 
Elmore  v.  Kingscote,  5  B.  &  C.  583;  the  verbal  agreement  into  which  the 
Goodman  v.  Griffiths,  1  H.  &  N.  574;  defendant  entered  for  the  sale  of  the 
Acebal  v.  Levy,  10  Bing.  376;  Cod-  copper  was  competent  and  material 
dington  v.  Goddard,  supra;  Turner  on  the  question  of  the  extent  of  his 
v.  Lorillard  Co.,  100  Ga.  645,  28  S.  E.  authority  to  bind  the  defendant. 
r  383.  Nor  does  the  admission  of  this  evi- 

3  See  Williams  v.  Robinson,  73  Me.  dence  for  this  purpose  at  all  contra- 
186,  40  Am.  R.  352;  Turner  v.  Loril-  vene  the  rule  that  parol  proof  is  in- 
lard  Co.,  100  Ga.  645,  28  S.  E.  R.  383;  competent  to  vary  or  control  a  writ- 
Wiener  v.  Whipple,  53  Wis.  298,  40  ten  contract.  It  is  offered  for  a 
Am.  R.  775.  In  Coddington  v.  God-  wholly  different  purpose.  It  bears 
dard,  supra,  the  defendant  sought  to  solely  on  a  preliminary  inquiry.  The 
show  that  a  broker's  memorandum  object  is  not  to  explain  or  alter  a 
of  an  alleged  sale  was  not  a  memo-  contract,  but  to  show  that  no  con- 
randum  of  the  bargain  as  made.  The  tract  was  ever  entered  into,  because 
court  held  that  the  broker  was  a  the  person  who  executed  it  had  no 
special  agent  and  had  no  authority  authority  to  make  it.    The  authority 

24  369 


§  449-] 


LAW    OF    SALE. 


[BOOK   I. 


c.  Of  the  Signing  of  the  Parties. 

§  449.  Whether  signing  by  both  parties  necessary.— The 

language  of  the  statute  usually  is  that  the  note  or  memoran- 
dum shall  be  signed  by  the  party  to  be  charged  thereby,  though 
the  English  statute  used  the  word  parties.  Some  importance 
has,  at  times,  been  attached  to  the  use  of  the  plural  form,  but, 
though  a  strong  a  priori  argument  might  be  made  that  both 
parties  are  to  be  charged  or  bound  by  the  agreement,  it  is  now 
well  settled  by  the  preponderance  of  authority  that  the  note 
or  memorandum  need  be  signed  only  by  the  party  against  whom 
it  is  to  be  enforced  and  that  the  want  of  mutuality  is  no  objec- 
tion.1 On  the  other  hand,  where  the  contract  consists  of  mut- 
ual promises,  it  is  held  in  some  cases  that  though  the  party 
to  be  charged  has  signed,  yet  if  the  party  bringing  the  action 
has  not  signed  and  consequently  could  not  be  compelled  to  per- 


of  an  agent  may  always  be  shown 
by  parol;  but  the  contracts  into 
which  he  enters  within  the  scope  of 
his  authority,  when  reduced  to  writ- 
ing, can  be  proved  only  by  the  writ- 
ing itself.  The  necessity  of  admit 
ting  evidence  of  the  verbal  contract 
entered  into  with  a  broker,  in  cases 
where  his  authority  is  drawn  in 
question,  is  quite  obvious.  If  such 
proof  were  incompetent,  a  broker 
who  had  entered  into  negotiations 
with  a  person  might  make  a  memo- 
randum  of  a  contract  wholly  differ- 
ent from  that  which  he  was  author- 
ized to  sign,  and  thereby  effectually 
preclude  all  proof  that  no  such  con- 
tract was  ever  made.  Allen  v.  Pink, 
4M.  &  W.  140;  Pitts  v.  Beckett,  13 
M.  &  W.  743,  750." 

i  Allen  v.  Bennet,  3  Taunt.  169; 
Thornton  v.  Kempster,  5  Taunt.  786; 
Laythoarp  v.  Bryant,  2  Bing.  N.  C. 
735;  Old  Colony  R.  R.  Corp.  v.  Evans, 
6  Gray  (Mass.),  25,  66  Am.  Dec.  394; 


Williams  v.  Robinson,  73  Me.  186,  40 
Am.  R.  352;  Smith's  Appeal,  69  Pa. 
St.  474;  Tripp  v.  Bishop,  56  Pa.  St. 
424:  Perkins  v.  Hadsell,  50  111.  216; 
Ide  v.  Leiser,  10  Mont.  5,  24  Am.  St. 
R.  17;  Hodges  v.  Kowing,  58  Conn. 
12,  7  L.  R.  A.  87;  Clason  v.  Bailey, 
14  Johns.  (N.  Y.)  484;  McCrea  v.  Pur- 
mort,  16  Wend.  (N.  Y.)  460,  30  Am. 
Dec.  103;  Richards  v.  Green,  23  N.  J. 
Eq.  536;  Sabre  v.  Smith,  62  N.  H.  663; 
Case  Threshing  Mach.  Co.  v.  Smith, 
16  Oreg.  381,  18  Pac.  R.  641 ;  Mason  v. 
Decker,  72  N.  Y.  595,  28  Am.  R.  190; 
Gartrell  v.  Stafford,  12  Neb.  545,  41 
Am.  R.  767;  Shirley  v.  Shirley,  7 
Blackf.  (Ind.)  452;  Douglass  v.  Spears, 
2  N.  &  McC.  (S.  C.)  207,  10  Am.  Dec. 
588;  Morin  v.  Martz,  13  Minn.  191; 
Anderson  v.  Harold,  10  Ohio,  399; 
Lowber  v.  Connit,  36  Wis.  176;  Ivory 
v.  Murphy,  36  Mo.  534;  De  Cordova 
v.  Smith,  9  Tex.  129, 58  Am.  Dec.  136; 
Cunningham  v.  Williams,  43  Mo.  App. 
629. 


370 


€11.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  450,  451. 


form  on  his  part,  there  is  such  a  lack  of  mutuality  in  the  con- 
tract as  renders  it  binding  upon  neither.1 

§  450.  Written  offer  accepted  by  parol. —  In  accord- 
ance with  the  prevailing  rule  it  is  held  that  if  one  party  makes, 
in  writing  signed  by  him,  an  offer  to  buy  or  sell  personal  prop- 
erty, the  person  to  whom  such  offer  is  made  may  accept  it  by 
parol,  and  after  such  an  acceptance  may  enforce  the  agree- 
ment against  the  person  signing.2 

§  451.  How  sign. —  The  party  signing  may  write  his  name 
in  full  or  in  part;3  he  may  use  his  initials  only;4  he  may  make 
his  mark,5  or  any  sign  which  is  intended  to  denote  his  signature ; G 
he  may  touch  the  pen  while  some  one  else  guides  it;7  or  he  may 
sign  his  name  through  the  medium  of  a  third  person  who  writes 
it  in  his  presence  and  by  his  express  direction.8    A  mere  de- 


1  Wilkinson  v.  Heavenrich.58  Mich. 
574,  55  Am.K.  70& 

2  Justice  v.  Lang,  42  N.  Y.  493,  1 
Am.  R.  576,  52  N.  Y.  823;  Mason  v. 
Decker.  72  N.  Y.  595,  28  Am.  K.  190; 
Case  Threshing  Mach.  Co.  v.  Smith, 
16  Oreg.  381;  Dressel  v.  Jordan,  104 
Mass.  407. 

3  Tims  the  omission  of  a  middle 
name  or  initial  is  not  fatal  (Fessen- 
den  v.  Mussey.  11  Cush.,  Mass..  127), 
nor  is  the  signing  only  by  the  first 
name.  Zann  v.  Haller,  71  Ind.  181). 
36  Am.  R.  193. 

*  Salmon  Falls  Mfg.  Co.  v.  Goddard, 
14  How.  (U.  S.)  446,  where  the  party 
signed  "  R.  R.  M. ;  "  Sanborn  v.  Flag- 
ler, 9  Allen  (Mass.),  474,  where  the 
party  signed  "J.  B.  F." 

5  Baker  v.  Dening,  8  A.  &  E.  94; 
Zimmerman  v.  Sale,  3  Rich.  (S.  C.) 
76;  Foye  v.  Patch,  132  Mass.  105; 
Brown  v.  McClanahan,  9  Baxt.(Teun.) 
347. 

6  Thus  the  use  of  the  figures  "1,  2, 
8 "will  suffice  where  the  party  in- 

•  tends  that  as  his  signature.     Brown 


v.  r.utchers'  Bank,  6  Hill  (N.  Y).  443. 
41  Am.  Dec.  755.  Nelson,  C.  J.,  says 
that  "a  party  may  become  bound  by 
any  mark  or  designation  he  thinks 
proper  to  adopt,  provided  it  be  used 
as  a  substitute  for  his  name  and  he 
intend  to  bind  himself."  See  also 
Palmer  v.  Stephens,  1  Denio  (N.  Y.), 
471;  Brainerd  v.  Heydrick,  32  How. 
Pr.  (N.  Y.)  97;  Mclntire  v.  Preston, 
5  Gilm.  (111.)  48,  48  Am.  Dec.  821; 
lias -all  v.  Life  Ass'n,  5  Hun  (N.  Y), 
151;  Dewitt  v.  Walton,  9  N.  Y.  571; 
David  v.  Insurance  Co.,  83  N.  Y.  265, 
38  Am.  R.  418;  Bickley  v.  Keenan,  60 
Ala.  293. 

7  Helshaw  v.  Langley,  11  L.  J.  Ch. 
(X.  S.)17. 

8  Mechem  on  Agency,  §  96;  Jansen 
v.  McCahill,  22  Cal.  563,  83  Am.  Dec. 
84;  Frost  v.  Deering,  21  Me.  156;  Bird 
v.  Decker,  64  Me.  550;  Nye  v.  Lowry, 
82  Ind.  316;  Croy  v.  Busenbark.  72 
Ind.  48:  McMurtry  v.  Brown,  6  Neb. 
868.  (  ontrci,  Simpson  v.  Common- 
wealth, 89  Ky.  412,  12  S.  W.  R.  630. 


871 


451.] 


LAW  OF  SALE. 


[BOOK  I. 


scription  of  himself  as  "your  father"  is  not  enough,1  but  a 
fictitious  name2  or  mark,  adopted  as  a  signature,"  will  suffice. 
The  party  may  sign  the  note  or  memorandum  at  the  begin- 
ning, in  the  body,  or  at  the  end  of  it.4    He  may  use  a  pencil,* 


i  Selby  v.  Selby,  3  Meriv.  2. 

2  Thus,  see  fourth  note  to  this  sec- 
tion. So  one  who  has  a  French  name 
may  use  the  English  translation  of 
it,  as  where  one  Couture  wrote  his 
name  Seam.  Augur  v.  Couture,  68 
Me.  427. 

3  See  fourth  note  to  this  section. 

*  Knight  v.  Crockford,  1  Esp.  190; 
Lemayne  v.  Stanley,  3  Lev.  1 ;  Saun- 
derson  v.  Jackson,  2  B.  &  P.  238; 
Coddington  v.  Goddard,  16  Gray 
(Mass.),  436;  Saunders  v.  Hackney,  10 
Lea  (Tenn.),  194.  In  Drury  v.  Young, 
58  Md.  546,  42  Am.  R.  343;  Schneider 
v.  Norris,  2  M.  &  S.  286,  and  Saunder- 
son  v.  Jackson,  a  printed  name  at 
the  head  of  the  memorandum  was 
held  good.  In  Johnson  v.  Dodgson,  2 
M.  &  W.  653,  the  defendant  himself 
wrote  the  terms  of  the  bargain  in  his 
own  book,  beginning,  "Sold  John 
Dodgson,"  and  the  seller  signed  it. 
Held,  that  this  was  a  sufficient  sign- 
ing by  Dodgson  to  bind  him.  Lord 
Abinger  said:  "The  cases  have  de- 
cided that  though  the  signature  be  in 
the  beginning  or  middle  of  the  instru- 
ment, it  is  as  binding  as  if  at  the 
foot;  the  question  being  always  open 
to  the  jury  whether  the  party,  not 
having  signed  it  regularly  at  the 
foot,  meant  to  be  bound  by  it  as  it 
stood,  or  whether  it  was  left  so  un- 
signed because  he  refused  to  com- 
plete it."  So  if  C  D  writes,  "A  B 
bought  of  C  D,"  etc.,  this  is  a  good 
signature  by  C  D  personally  or  by 
his  authorized  agent.  Hawkins  v. 
Chace,  19  Pick.  (Mass.)  502.  In  Cali- 
fornia Canneries  Co.  v.  Scatena,  117 


Cal.  447,  49  Pac.  R.  462,  it  was  held 
that  the  writing  of  the  name  across 
the  face  of  the  memorandum  was  a 
sufficient  signature  and  subscription 
to  satisfy  the  statute,  the  party  in- 
tending thereby  to  signify  his  intent 
to  accept  and  be  bound  by  the  con- 
tract. If  it  appears  in  the  body  of 
the  memorandum,  it  is  enough.  New 
Eng.  etc.  Meat  Co.  v.  Standard  Wors- 
ted Co.,  165  Mass.  328,  43  N.  E.  R.  112r 
52  Am.  St.  R.  516.  In  Durrell  v. 
Evans,  1  H.  &  C.  174,  Lord  Black- 
burn said:  "If  the  matter  were  res 
integra,  I  should  doubt  whether  a 
name  printed  or  written  at  the  head 
of  a  bill  of  parcels  was  such  a.  sig- 
nature as  the  statute  contemplated; 
but  it  is  now  too  late  to  discuss  that 
question.  If  the  name  of  the  party 
to  be  charged  is  printed  or  written 
on  a  document,  intended  to  be  a 
memorandum  of  the  contract,  cither 
by  himself  or  his  authorized  agent, 
according  to  Schneider  v.  Norris 
(supra),  and  Saunderson  v.  Jackson 
(supra),  it  is  his  signature,  whether 
it  is  at  the  beginning  or  middle  or 
foot  of  the  document.  In  Johnson 
v.  Dodgson  (supra),  the  memoran- 
dum was  retained  by  the  defendant 
in  his  own  possession,  but  as  it  con- 
tained his  name,  and  was  intended 
to  be  a  note  of  the  contract,  it  was 
held  binding  on  him,  although  the 
fact  of  his  keeping  it  was  a  clear  in- 
dication that  he  never  intended  it  as- 
a  voucher  of  his  being  bound,  but 
only  to  bind  the  other  party." 

5  Geary  v.  Physic,  7  D.  &  R.  653,  5 
B.  &  C.  234. 


372 


CH.  VII.]  CONTRACT   UNDER   STATUTE    OF   FRAUDS.  [§  452. 

or  a  stamp,1  or  may  use  and  adopt  a  printed  signature.2  The 
question  in  every  case,  where  a  substituted  form  of  signing  is 
adopted,  is  whether  b\T  that  form  the  party  intended  to  be 
bound,  and  this  is  usually  a  question  of  fact. 

But  the  party  must  sign  the  memorandum  which  is  to  be 
binding  on  him,  and  hence  where  the  memorandum  was  in 
two  parts,  and  each  party  signed  the  one  which  the  other  ought 
to  have  signed,  it  was  held  insufficient.3 

a.  Of  the  Signing  by  Agent. 

§  45'2.  Who  may  he  agent. —  It  is  a  general  rule  that  any 
person  who  has  sufficient  capacity  to  act  for  himself  is  compe- 
tent to  act  as  the  agent  of  another;  but  the  rule  may  bo  stated 
still  more  broadly,  for  many  persons  are  competent  to  act  for 
others  who  would  not  be  competent  to  bind  themselves,  such 
as  infants  and  married  women,  and  it  is  often  said  that  any 
person  may  be  an  agent  except  a  lunatic,  imbecile  or  child  of 
tender  years.4 

As  a  rule  a  person  cannot  at  the  same  time  be  both  a  party 
to  the  transaction  and  the  agent  of  the  opposite  party ; 5  though 
with  the  full  knowledge  and  consent  of  the  opposite  party 
there  is  no  legal  incapacity  to  so  act.6 

i  Bennett  v.  Brumfitt,  L  R  3  C.  P.  thereby  adopted  the  printed  heading 

28.    But  it  must  appear  that  it  was  as  their  signature.     To  the  same  ef- 

the  intention  to  adopt  this  as  his  feet:  Schneider  v.  Xorris,  2  M.  &  S. 

signature.     Boardman  v.  Spooner,  13  2S6;  Saunderson  v.  Jackson,  2  B.  & 

Allen  (Mass.),  353,  90  Am.  Dec.  196;  P.  238;  Tourret  v.  Cripps,  48  L.  J.Ch. 

Wood  on  Statute  of  Frauds,  §  412.  567. 

*Grieb  v.  Cole,  60  Mich.  397.     "It  » Canterberry  v.  Miller,  76  I1L  355. 
is  a  sufficient  signing  if  the  name  be  4  Mechem  on  Agency,  §  57. 
in  print,  and  in  any  part  of  the  in-  5  Mechem  on  Agency,  §  68.     One 
strument,  provided  that  the  name  is  party  to  the  contract  cannot,  there- 
recognized  and  appropriated  by  the  fore,  be  the  agent  of  the  other  to 
party  to  be  his.     Drury  v.  Young,  58  bind  the  latter  by  signing  the  mem- 
Md.  546,  42  Am.  R.  343.     In  this  case  orandum.     Sharman  v.  Brandt,  L.  R. 
the   defendants  wrote  the  note  or  6  Q.  B.  720:  Wilson  v.  Lewiston  Mill 
memorandum  on  one  of  their  printed  Co.,  150  X.  Y.  314,  44  N.  E.  R,  959,  55 
letter-heads    containing    their    firm  Am.  St.  R.  680. 
and  individual  names,  but  did  not  b Mechem  on  Agency,  §  68. 
sign    it.     Held,   sufficient,  as    they 

:;73 


§§  453-455.]  law  of  sale.  [book  i. 

§453.  How  appointed.— The  language  of  the  fourth  sec- 
tion of  the  statute  requires  that,  as  to  interests  in  land,  the 
authority  of  the  agent  shall  be  conferred  by  writing,  but  no 
such  requirement  is  found  in  the  seventeenth  section.  That 
the  agent  must  be  "  thereunto  lawfully  authorized  "  is  the  only 
requirement.  The  power  of  the  agent,  therefore,  in  this  case 
may  be  conferred  in  the  same  manner  as  in  other  cases —  either 
by  a  prior  authorization,  express  or  implied,1  or  by  a  subse- 
quent ratification.2  Evidence  of  such  a  ratification  would  be 
found,  for  example,  where  the  principal  afterward  adopted 
and  delivered  a  memorandum  made  by  another,  as  a  memo- 
randum of  his  agreement.3 

It  is  not  essential  that  the  agent  shall  be  specially  author- 
ized to  sign  the  memorandum;  here,  as  elsewhere,  it  is  suffi- 
cient if  the  making  of  such  a  memorandum  falls  within  the 
general  scope  of  his  authority.4 

§  454.  Several   owners   acting  in   unison  —  One   as 

agent  for  all. —  But  though  owners  of  several  interests  are 
acting  in  unison,  one  has  not  thereby  any  implied  power  to 
bind  the  others;  and  the  mere  fact  that  one  has,  in  writing, 
expressed  his  willingness  to  sell  if  the  others  did,  gives  no  au- 
thority to  the  others  to  bind  him,  and  this  writing  does  not 
constitute  such  a  memorandum  as  will  defeat  the  statute.5 

§  455.  How  sign. —  The  appropriate  manner  for  an  agent  to 
sign  is  to  write  his  principal's  name,  followed  by  such  a  state- 
ment as  indicates  that  it  was  done  by  him  as  agent;  as,  A  B 
by  C  D,  his  agent ;  or,  for  A  B,  C  D  agent,  etc.6  But  though 
these  forms  are  appropriate  they  are  not  indispensable,  and  the 
agent  may  sign  his  principal's  name  alone,7  or  his  own  name 

i  See  Mechem  on  Agency,  §§  80-  4  Griffith  Co.  v.  Humber,  [1899]  2 

10G.  Q.  B.  414. 

2  Mechem  on  Agency,  §  145;  Mac-  5 Tompkins  v.  Sheehan  (1899),  158 
lean  v.  Dunn,  4  Bing."  722;   Soames  N.  Y.  617,  58  N.  E.  R.  502. 

v.  Spencer,  1  Dowl.  &  R.  32.  6See  Mechem  on  Agency,  §  432. 

3  Hawkins  v.Chace,  19  Pick.  (Mass.)  "See  Mechem  on  Agency,  §§  427- 
502.  429;    Hawkins    v»  Chace,   19    Pick.. 

374 


CH.  VII.]  CONTRACT    UNDER   STATUTE    OF   FRAUDS. 


[§  ^C. 


alone.1     So  he  may  sign  his  name  in  full  or  in  part,2  or  may 
use  his  initials  only.3 

§  456.  Where. —  Unless  the  statute  requires  the  signa- 
ture to  be  at  the  end  —  and  the  word  "  subscribed  "  has  been 
held  to  amount  to  such  a  requirement,4 — the  agent's  signature 
may  be  in  any  part  of  the  memorandum,  provided  it  was  in- 
tended to  have  effect  as  such.5 


(Mass.)  502 ;  Clason  v.  Bailey,  14  Johns. 
(N.  Y.)  484;  Hunter  v.  Giddings,  97 
Mass.  41,  93  Am.  Dec.  54. 

But  in  Simpson  v.  Commonwealth, 
89  Ky.  412,  12  S.  W.  R.  630,  the  court 
held  that  the  signing  by  the  agent, 
in  the  principal's  presence  and  by  his 
direction,  of  the  principal's  name 
alone,  was  neither  a  signing  by  the 
principal  nor  the  agent  within  the 
meaning  of  the  statute. 

1  Wiener  v.  Whipple,  53  Wis.  298, 
40  Am.  R.  775;  Trueman  v.  Loder,  11 
Ad.  &  El.  589,  594;  Higgins  v.  Senior, 
8  M.  &  W.  840;  Stowell  v.  Eldred,  39 
Wis.  614;  Huntington  v.  Knox,  7 
Cash.  (Mass.)  371. 

2  See  ante,  §  451. 

3  Salmon  Falls  Mfg.  Co.  v.  Goddard, 
14  How.  (U.  S.)  446. 

*  Davis  v.  Shields,  26  Wend.  (N.  Y.) 
341;  James  v.  Patten,  6  N.  Y.  9,  55 
Am.  Dec.  376;  In  re  Clifford,  2  Saw. 
(TJ.  S.  C.  C.)  428. 

5  In  Hawkins  v.  Chace,  19  Pick. 
(Mass.)  502,  it  is  said:  "Two  things 
may  be  conceded,  as  well  settled  by 
authorities:  (1)  that  to  constitute  a 
signing  within  the  meaning  of  the 
statute  of  frauds,  it  is  not  necessary 
that  the  signatures  be  placed  at  the 
bottom,  but  if  the  party  to  be  charged 
has  inserted  his  name  in  any  part  of 
the  paper,  in  his  own  handwriting,  it 
is  sufficient  to  give  it  effect  (Saunder- 
son  v.  Jackson,  2  Bos.  &  Puk  238; 

37, 


Knight  v.  Crockford,  1  Esp.  190;  Pen- 
niman  v.  Hartshorn,  13  Mass.  87); 
and  (2)  that  the  authority  of  one 
person  to  sign  for  another  need  not 
itself  be  proved  by  other  evidence, 
but  may  well  be  proved  by  parol  evi- 
dence." 

Thus,  a  memorandum  in  this  form: 
"W.  H.  Hawkins  &  Co.,  Bought  of 
William  H.  Chace,"  etc.,  is  suffi- 
ciently signed  by  Chace  if  written 
by  an  authorized  agent.  Hawkins  v. 
Chace,  siqora. 

So  a  memorandum,  by  an  author- 
ized agent,  in  this  form:  "Bought 
for  Isaac  Clason  of  Bailey  &  Voor- 
hees,"  etc.,  is  thereby  sufficiently 
signed  to  bind  each.  Clason  v.  Bailey, 
14  Johns.  (N.  Y.)  484.  In  Merritt  v. 
Clason,  12  id.  102,  7  Am.  Dec.  286, 
the  memorandum  was:  "Bought  of 
Daniel  &  Isaac  Merritt  .  .  .  for 
Isaac  Clason,"  etc.  Said  the  court: 
"  In  the  body  of  this  memorandum 
the  name  of  Isaac  Clason,  the  de- 
fendant, is  written  by  his  agent, 
whom  he  had  expressly  authorized 
to  make  this  contract.  The  memo- 
randum, therefore,  is  equally  bind- 
ing on  the  defendant  as  if  he  had 
written  it  with  his  own  hand;  and 
if  he  had  used  his  own  hand,  instead 
of  the  hand  of  his  agent,  the  law  is 
Avell  settled  that  it  is  immaterial,  in 
such  a  case,  whether  the  name  is 
written  at  the  top,  or  in  the  body,  or 


§§  457,  458.] 


LAW    OF    SALE. 


[book  T. 


457. 


Delegation. —  Like  other  mechanical  acts,  the 


signing  by  the  agent  may  be  through  the  medium  of  another,  as 
his  clerk,  who  signs  in  his  presence  and  by  his  direction.1  But, 
on  the  other  hand,  where  the  agency  is  a  personal  one,  it  can- 
not be  delegated,2  and  hence  if  one  person  is  authorized  to  make 
'  the  memorandum,  one  signed  by  another  person  will  not  suf- 
fice.3 


458. 


Not  as  witness. —  The  signature  of  the  agent 


which  will  suffice  must,  moreover,  be  that  of  the  agent  as  agent; 


at  the  bottom  of  the  memorandum. 
It  is  equally  a  signing  within  the 
statute." 

So  a  memorandum  in  a  broker's 
book  in  this  form  is  sufficient:  "9th. 
W.  W.  Goddard  to  T.  B.  Coddington 
&  Co.,"  followed  by  items  and  terms. 
This  memorandum  shows  that  God- 
dard is  the  seller  and  Coddington  & 
Co.  the  buyers;  and  such  writing  of 
their  names  by  their  duly-authorized 
agent  is  sufficient  without  further 
signing.  Coddington  v.  Goddard,  16 
Gray  (Mass.),  436.  Said  Bigelow,  C.  J. : 
"  We  know  of  no  case  in  which  it  has 
been  held  that  the  signature  of  the 
name  of  the  agent  through  whom  the 
contract  is  negotiated  should  appear 
in  the  writing.  It  is  sufficient  if  the 
names  of  the  pai-ties  to  be  charged 
are  properly  inserted,  either  by  them- 
selves or  by  some  person  duly  au- 
thorized to  authenticate  the  docu- 
ment. Brokers  and  auctioneers  are 
deemed  to  be  the  agents  of  both  par- 
ties, and  by  virtue  of  their  employ- 
ment stand  in  such  relation  to  their 
principals  that  they  can  sign  the 
names  of  the  parties  to  a  contract  of 
sale  effected  through  their  agency. 
Such  authority  is  implied  from  the 
necessity  of  the  case;  because  with- 
out it  they  could  not  complete  a  con- 

37 


tract  of  sale  so  as  to  make  it  legally 
binding  on  the  parties.  Nor  is  it  at 
all  material  that  the  names  should 
be  written  at  the  bottom  of  the 
memorandum.  It  is  sufficient  if  the 
names  of  the  principals  are  inserted 
in  such  form  and  manner  as  to  indi- 
cate that  it  is  their  contract,  by 
which  one  agrees  to  sell  and  the 
other  to  buy  the  goods  or  merchan- 
dise specified  upon  the  terms  therein 
expressed.  It  is  the  substance,  and 
not  the  form,  of  the  memorandum, 
which  the  law  regards.  The  great 
purpose  of  the  statute  is  answered, 
if  the  names  of  the  parties  and  the 
terms  of  the  contract  of  sale  are 
authenticated  by  written  evidence, 
and  do  not  rest  in  parol  proof.  Pen- 
niman  v.  Hartshorn,  13  Mass.  87; 
Hawkins  v.  Chace,  19  Pick.  (Mass.) 
502,  505;  Fessenden  v.  Mussey,  11 
Cush.  (Mass.)  127;  Morton  v.  Dean.  13 
Met.  (Mass.)  385;  Salmon  Falls  Mfg. 
Co.  v.  Goddard,  14  How.  (U.  S.)  446." 

See  also  New  England  Dressed 
Meat  Co.  v.  Standard  Worsted  Co., 
165  Mass.  328,  43  N.  E.  R.  112. 

1  Williams  v.  Woods,  16  Md.  220. 

2Mechem  on  Agency,  §  185. 

3  Henderson  v.  Barnewall,  1  Y.  & 
J.  387.  In  this  case  a  broker's  clerk 
was  deputed  to  make  the  memoran- 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§   459,  -iGO. 

if,  therefore,  he  signs  merely  as  a  witness  to  the  transaction,  it 
is  not  enough.1 

§  459.  One  person  as  agent  of  both  parties. —  A  person  may 
act  as  the  agent  of  two  or  more  parties  in  the  same  transaction 
if  his  duties  to  each  are  not  such  as  to  require  him  to  do  incom- 
patible things;  but  wherever,  from  the  nature  of  his  employ- 
ment, each  of  two  principals  whose  interests  are  antagonistic 
is  entitled  to  the  benefit  of  the  agent's  judgment,  discretion  or 
personal  influence,  the  agent  will  not  be  permitted  to  act  for 
both  in  the  same  transaction,  except  with  their  full  knowledge 
and  consent.2  If,  however,  with  full  knowledge  of  his  relations 
to  each,  they  see  fit  to  mutually  confide  in  him,  there  is  no 
legal  objection  to  it,  nor  can  either  principal  afterwards  escape 
responsibility  because  of  such  double  employment.3 

§  460.  ■  Evidence  of  authority  to  sign  for  both. —  But 

while  one  person  may  thus  act  for  both  parties,  such  a  double 
relation  will  not  be  lightly  inferred,  but  the  evidence  must  be 
such  as  to  indicate  an  intention  on  the  part  of  both  that  the  act 
of  the  agent  should  be  their  act  respectively.4  Thus,  where  the 
plaintiff's  traveling  agent  wrote  out  an  order  for  goods  in  du- 
plicate upon  printed  headings  in  the  presence  of  the  defendant, 
handing  him  the  duplicate  and  retaining  the  original,  it  was 
held  that  there  was  no  evidence  in  this  that  plaintiff's  agent 
was  authorized  to  sign  the  memorandum  as  defendant's  agent 
also.5 

dum.  and  it  was  held  that  a  memo-  the  buyer  of  goods   requested  the 

randum  made  by  the  broker  would  agent  of  the  seller  to  write  a  note  of 

not  suffice.  the  contract  in   the   buyer's    book, 

^osbell  v.  Archer,  2  Ad.  &  El.  500.  which  the  agent  did.  and  signed  it 

2Mechem    on    Agency,   §67,   and  with  his  own  name.     Held,  that  this 

cases  cited.  request  did  not  constitute  him  the 

3  Mechem  on  Agency,  §67,  and  buyer's  agent,  so  as  to  make  hi-  sig- 
cases  cited.  nature  bind  the  buyer.     It  was  said. 

4  See  extract  from  Murphy  r.Boese,  however,  by  Coll  man,  J.,  that  if  he 
L.  R.  10  Exch.  126,  in  second  note  had  signed  the  buyer's  name  instead 
below.  of  his  own  the  case  might  have  been 

5  Murphy  v.  Boese,  supra.     So  in  different. 
Graham  v.  Musson,  5  Bing.  X.  C.  603, 

377 


§  460.] 


LAW  OF  SALE. 


[BOOK  I. 


But  in  another  case  plaintiff  had  goods  in  the  possession  of 
his  agent  and  went  with  the  defendant  to  the  agent's  premises 
and  there  conducted  a  bargain  in  the  agent's  presence.  The 
agent  thereupon  made  a  memorandum  in  his  book  and  also  a 
counterpart,  tore  out  the  memorandum  and  gave  it  to  defend- 
ant, who  kept  it  and  carried  it  away.  Before  going,  defendant 
requested  an  alteration  to  be  made  in  the  memorandum,  and 
the  agent  made  it  with  the  plaintiff's  assent.  The  memoran- 
dum was  in  the  following  form :  "  Messrs.  Evans  (the  defend- 
ants) bought  of  T.  T.  &  W.  Xoakes  (the  agents),  T.  Durrell " 
(the  plaintiff),  followed  by  a  description  of  the  goods  and  the 
price.  The  counterpart  entry  was,  "  Sold  to  Messrs.  Evans, 
T.  Durrell,"  etc.  It  was  held  that  there  was  evidence  to  go  to 
the  jury  that  the  agent  in  making  these  entries  was  the  agent 
of  the  defendant  as  well  as  the  plaintiff,  and  if  he  was,  then  his 
writing  the  name  "  Messrs.  Evans  "  was  a  sufficient  signing  to 
bind  them.1 


i  Durrell  v.  Evans,  1  H.  &  C.  174 
reversing  s.  C,  6  H.  &  N.  660.  (Gra- 
ham v.  Musson,  supra,  was  distin- 
guished, and  the  case  was  likened  to 
Johnson  v.  Dodgson,  2  M.  &  W.  653.) 
In  the  later  case  of  Murphy  v.  Boese, 
supra,  Pollock,  B.,  said:  "I  think 
that  it  is  extremely  important  in  all 
those  cases  in  which  it  is  attempted 
to  prove  an  implied  agency,  or  that 
there  is  evidence  from  which  an 
agency  may  be  inferred,  to  take  into 
account  the  character  of  the  parties 
and  their  usual  course  of  dealing. 
The  act  requires  that  the  note  of  the 
bargain  should  be  signed  by  an  agent 
of  the  party  to  be  charged.  At  first 
sight  it  would  seem  odd  that  where 
two  contracting  parties  meet  to- 
gether, that  one  who  is  in  a  position 
somewhat  adverse  to  the  other  should 
be  his  representative  and  agent.  But 
no  doubt  such  a  thing  may  happen, 
as  in  the  instance,  which  has  very 
properly  been  cited,  of  the  auction- 


eer's clerk  signing  as  the  agent  of 
both  parties.  In  Lord  St.  Leonard's 
work  on  Vendors  and  Purchasers 
(14th  ed.,  p.  147)  he  explains  the  prin- 
ciple upon  which  the  auctioneer  can 
bind  both  vendor  and  purchaser  by 
his  signature,  citing  Earl  of  Glengal 
v.  Barnard,  1  Keen,  769,  and  Emmer- 
son  v.  Heelis,  2  Taunt.  38,  and  stat- 
ing that  the  implied  agency  of  an 
auctioneer  is  hot  extended  to  other 
cases.  Therefore  the  present  case 
is  not  within  this  exceptional  rule. 
The  case  to  which  it  has  the  nearest 
analogy  is  that  of  Durrell  v.  Evans, 
1  H.  &  C.  174,  31  L.  J.  (Ex.)  337,  and 
it  is  remarkable  that  when  that  case 
came  before  the  court  of  exchequer, 
Lord  Penzance  seems  to  have  drawn 
the  conclusion  that  what  was  done 
was  nothing  more  than  what  occurs 
in  making  out  and  giving  an  invoice. 
I  am  bound  to  say  that  I  agree  with 
his  reasoning,  and  I  will  apply  it  to 
the  present  case.     I  think  Durrell  v. 


OH.  VII.]  CONTRACT    UNDER    STATUTE    OF   FRAUDS. 


L§  **1. 


§  461.  Signing  by  auctioneer. —  An  auctioneer  employed  by 
the  owner  of  real  or  personal  property7,  or  of  rights  of  any  kind, 
to  sell  or  dispose  of  the  same  at  auction,  is  primarily  the  agent 
of  the  owner,  and  of  him  alone;  and  he  remains  his  agent  ex- 
clusively up  to  the  moment  when  he  accepts  the  bid  of  the  pur- 
chaser and  knocks  down  the  property  to  him.  Upon  the  accept- 
ance of  the  bid,  however,  the  auctioneer  becomes  the  agent  of 
the  purchaser  also,  to  the  extent  that  it  is  necessary  to  enable 
the  auctioneer  to  complete  the  purchase,  and  he  may  therefore 
bind  the  purchaser  by  entering  his  name  as  such  and  by  sign- 
ing the  memorandum  of  the  sale.1  Such  a  signing  is  sufficient 
to  satisfy  the  statute  of  frauds.2  But  in  order  to  so  bind  the 
purchaser,  the  entry  of  the  name  of  the  purchaser  must  be  done 


Evans,  supra,  can  only  be  supported 
if  it  decides  that  the  agency  did  not 
commence  till  after  the  memoran- 
dum had  been  written  out.  and  that 
will  distinguish  it  from  the  facts  be- 
fore us.  It  might  be  said  that  tl in- 
direction given  by  the  defendant  to 
Noakes,  the  factor,  to  alter  the  instru- 
ment was  an  adoption  of  his  act  in 
preparing  it,  or  a  recognition  ab  ini- 
tio of  the  whole  document  as  con- 
taining the  contract.  Or  one  might 
go  further  and  say  that,  from  the 
nature  of  the  transaction  and  the 
meeting  of  the  parties  at  the  office, 
it  might  be  thought  that  there  was 
evidence  that  it  was  meant  that 
Noakes  should  act  as  the  scribe  of 
both  parties  in  drawing  up  a  note  of 
the  contract.  But  here  there  is  an 
entire  absence  of  any  act  of  recogni- 
tion by  the  defendant  of  the  traveler 
as  bis  agent." 

i  Bent  v.  Cobb,  9  Gray  (Mass.),  397, 
69  Am.  Dec.  295;  Doty  v.  Wilder,  15 
111.  407,  60  Am.  Dec.  756;  Thomas  v. 
Kerr,  3  Bush  (Ky).  619,  06  Am.  Dec. 
262;  Walker  v.  Herring,  21  Gratt. 
(Va.)  678,  8  Am.  R.  616. 


2  Bent  v.  Cobb,  supra;  Sanborn  v. 
Chamberlin,  101  Mass.  409:  Craig  v. 
Godfrey,  1  Cal.  415,54  Am.  Dec.  299; 
Thomas  v.  Kerr,  supra;  Harvey  v. 
Stevens.  43  Vt.  653;  Hart  v.  Woods, 
7  Black  f.  (Ind.)  568;  Adams  v.  Mc- 
Millan. 7  Port.  (Ala.)  73;  O'Donnell  v. 
Leeman.  43  Me.  158;  Linn  Boyd  To- 
bacco Co.  v.  Terrill,  13  Bush  i  Ky.  |, 
463;  Brent  v.  Green,  6  Leigh  (Va.  t,  16; 
Pike  v.  Balch,  38  Me.  302;  Pugh  v. 
Chesseldine,  11  Ohio,  109,  37  Am. 
Dec.  414:  McComb  v.  Wright,  4  Johns. 
(N.  Y.i  Ch.  659;  First  Baptist  Church 
v.  Bigelow,  16  Wend.  (N.  Y.)  28;  Davis 
v.  Rowell,  2  Pick.  (Mass.)  64.  13  Am. 
Dec.  398;  Morton  v.  Dean,  13  Mete 
(Mass.)  385;  Johnson  v.  Buck,  35  N. 
J.  L.  338,  10  Am.  R.  243;  Farebrother 
v.  Simmons,  5  B.  &  Aid.  333:  Simon 
v.  Motivos,  3  Burr.  1921;  Hinde  v. 
Whitehouse,  7  East.  558;  White  v. 
Proctor,  4  Taunt.  209;  Emmerson  v. 
Heelis,  2  Taunt.  38.  But  where  the 
auctioneer  is  a  party  in  interest,  his 
memorandum  is  not  sufficient.  Bent 
v.  Cobb,  supra;  Tull  v.  David.  45  Mo. 
444,  100  xim.  Dec.  385;  Johnson  v. 
Buck,  35  N.  J.  L.  338,  10  Am.  R  243. 


379 


§  161.] 


LAW    OF    SALE. 


[BOOK    I. 


by  the  auctioneer  or  his  clerk  immediately  upon  the  acceptance 
of  his  bid  and  the  striking  down  of  the  property^  it  must  be 
done  at  the  time  and  place  of  the  sale,  and  cannot  be  done 
after  the  sale  is  over.1  The  principle  upon  which  this  rule  is 
founded,  as  is  said  by  a  learned  judge,  is  "that  the  auctioneer 
at  the  sale  is  the  agent;  that  the  purchaser,  by  the  act  of  bid- 
ding, calls  on  him  or  his  clerk  to  put  down  his  name  as  the 
purchaser.  The  entry,  being  made  in  his  presence,  is  presumed 
to  be  made  with  his  sanction,  and  to  indicate  his  approval  of 
the  terms  thus  written  down.  In  such  case  there  is  but  little 
danger  of  mistake  or  fraud.  But  if  a  third  person,  not  pres- 
ent, or  even  the  auctioneers,  may  afterward  add  the  name  of 
another  purchaser,  they  may  strike  out  the  name  already  in- 
serted and  substitute  that  of  a  new  and  different  purchaser. 
They  may  defeat  rights  already  vested.  They  may  impose  lia- 
bilities never  contracted.     The  party  to  be  charged  may  thus 


iMechem  on  Agency,  §893.  "It 
appears  now  to  be  settled  by  the  Eng- 
lish authorities,  .  .  .  that  the  auc- 
tioneer is  a  competent  agent  to  sign 
for  the  purchaser  either  of  lands  or 
goods  at  auction;  and  the  insertion 
of  his  name  as  the  highest  bidder  in 
the  memorandum  of  the  sale  by  the 
auctioneer,  immediately  on  receiving 
his  bid  and  striking  down  the  ham- 
mer, is  a  signing  within  the  statute 
so  as  to  bind  the  purchaser."  Chan- 
cellor Kent,  in  McComb  v.  Wright,  4 
Johns.  Ch.  (N.  Y.)  659,  663. 

"  It  is  now  well  settled  by  authori- 
ties, that  a  sale  of  real  estate  at  auc- 
tion, where  the  name  of  the  bidder 
is  entered  by  the  auctioneer,  or  by 
his  clerk  under  his  direction,  on  the 
spot,  and  such  entry  is  so  connected 
with  the  subject  and  terms  of  sale  as 
to  make  a  part  of  the  memorandum, 
is  a  contract  in  writing,  so  as  to  take 
the  case  out  of  the  statute  of  frauds." 
Story,  J.,  in  Smith  v.  Arnold,  5 
Mason  (U.  S.  C.  C),  414,  419. 


"  The  name  of  the  bidder  must  be 
entered  by  the  auctioneer,  or  by  his 
clerk  under  his  direction,  on  the 
spot."  Shaw,  J.,  in  Gill  v.  Bicknell, 
2  Cush.  (Mass.)  355,  358. 

"The  law,  therefore,  when  it  al- 
lows him  (the  auctioneer)  to  act  in 
the  nearly  unprecedented  relation  of 
agent  for  both  parties,  imposes  a 
qualification  not  applied  in  the  usual 
cases  of  agency,  and  requires  that  the 
single  act  for  which,  almost  from  ne- 
cessity, he  is  authorized  to  perform 
for  the  buyer,  shall  be  done  at  the 
time  of  sale,  and  before  the  termina- 
tion of  the  proceedings."  Kent,  J., 
in  Horton  v.  McCarty,  53  Me.  394-398. 
To  the  same  effect,  see  Craig  v.  God- 
frey, 1  Cal.  415,  54  Am.  Dec.  299, 
where  the  entry  was  held  too  late, 
though  made  in  the  afternoon  of  the 
same  day;  Hicks  v.  Whitmore,  12 
Wend.  (N.  Y.)  548,  where  one  hour's 
delay  was  held  fatal. 


380 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF   FRAUDS. 


[§  462. 


be  held  liable  by  a  writing  he  never  saw,  signed  by  an  agent 
of  whom  he  never  heard." * 

§  462.  But  auctioneer  who  sells  his  own  goods  cannot  sign 
for  buyer. —  Where,  however,  the  auctioneer  is  himself  the 
seller  of  the  goods,  this  implied  power  to  bind  the  buyer  does 
not  exist,2  inasmuch  as  the  same  party  cannot,  as  has  b^en  seen,3 
be  at  once  both  party  and  agent  for  the  opposite  party,  with- 
out the  latter's  knowledge  and  consent.  With  such  express  con- 
sent, however,  he  may  act  for  both.4 

But  the  clerk  of  the  auctioneer  may  act  as  agent  for  both 
parties,  and  bis  memorandum  will  bind  both.5 


1  Staples,  J.,  in  Walker  v.  Herring, 
21  Gratt.  (Va.)  678,  8  Am.  R  616. 

2  In  Johnson  v.  Buck,  35  N.  J.  L. 
338,  10  Am.  R.  243,  it  is  said:  "The 
agent,  to  make  the  signature,  must 
be  some  third  person.  Neither  of  the 
contracting  parties  can  be  agent  for 
the  other.  A  signature  by  the  vendor 
or  purchaser,  of  the  name  of  the 
other,  is  not  a  sufficient  signing. 
Wright  v.  Dannah,  2  Camp.  203; 
Rayner  v.  Linthorne,  2  C.  &  P.  124; 
Sharman  v.  Brandt,  L,  R.  6  Q.  B.  720; 
Bent  v.  Cobb,  9  Gray  (Mass.),  397,  69 
Am.  Dec.  295.  Where  the  suit  is 
brought  by  the  auctioneer  himself, 
for  the  purposes  of  that  suit  he  is  re- 
garded as  a  contracting  party,  and 
a  signing  by  him  of  the  name  of 
the  defendant  is  insufficient.  Fare- 
brother  v.  Simmons,  5  B.  &  Aid.  333." 
See  also  Smith  v.  Arnold,  5  Mason 
(U.  S.  C.  C),  414;  Tull  v.  David,  45 
Mo.  444,  100  Am.  Dec.  385. 

3  See  ante,  §  452. 

4  Mechem  on  Agency,  §  68. 

5  In  Johnson  v.  Buck,  supra,  the 
court  further  say:  "But  the  reason 
of  this  disqualification  to  be  the 
agent  of  the  purchaser,  for  the  pur- 
pose of  signing,  does  not  apply  to  the 


clerk  of  the  auctioneer.  When  the 
bids  are  announced,  and  the  property 
struck  off,  the  clerk  is  the  agent  of 
both  parties  to  record  the  sales  and 
affix  the  signature  of  the  purchasers, 
although  he  is  employed  to  act  as 
clerk  by  the  auctioneer.  No  reason 
for  his  disability  to  act  as  agent  for 
the  purpose  of  making  the  signature 
of  the  purchaser,  as  between  the  lat- 
ter and  the  auctioneer,  can  be  ad- 
duced, which  will  not  operate  equally 
to  exclude  the  auctioneer,  where  the 
litigation  is  directly  between  the 
vendor  and  purchaser.  The  question, 
in  every  case,  is  one  of  fact,  whether 
the  person  by  whom  the  signature 
has  been  made  was  an  agent  law- 
fully authorized  to  make  the  same. 
Auctioneers  and  brokers,  by  virtue 
of  their  business,  by  the  usages  of 
trade,  are  assumed  to  have  such  au- 
thority; and  where  the  auctioneer's 
clerk,  or  a  volunteer,  acts  openly  at 
a  sale  in  entering  the  successful  bids, 
as  they  are  publicly  announced,  his 
authority  to  act  for  the  purchaser  in 
the  premises  is  established.  Conse- 
quently, it  has  been  held  that,  in  a 
suit  in  the  name  of  the  auctioneer 
against  a  purchaser  to  recover  the 


381 


§§463,464.]  LAW   OF    SALE.  [BOOK    I. 

§  463.  Broker  as  agent  of  both  parties.— The  purchase  and 
sale  of  goods  is  constantly  being  effected  through  the  medium 
of  a  special  class  of  agents  called  brokers.  The  broker,  like  other 
ao-ents,  owes  a  duty  of  fidelity  and  single-mindedness  to  his 
employer  which  renders  him  incompetent  to  enter  into  the  serv- 
ice of  both  parties  to  the  same  transaction,  except  with  the  full 
knowledge  and  consent  of  both.1  With  this  knowledge  and 
consent,  however,  he  may  act  for  both,'2  and  in  a  great  number 
of  mercantile  transactions  he  represents  both  parties  by  their 
express  or  implied  authority ;  and  where  he  does  so,  his  signing 
of  the  name  of  each  party  binds  each.3 

|  464.  How  authorized. —  This  authority  need  not  be 

expressly  conferred,  and  in  practice  ordinarily  is  not.  At  the 
outset  the  broker  is  the  agent  of  the  party  who  first  employed 
him,  but  he  becomes  the  agent  of  the  other  also,  when  the  lat- 
ter instructs  him  to  close  the  bargain,4  or  deals  with  him  as 
representing  both  parties,5  or  subsequently  ratifies  what,  as 
agent  of  both  parties,  he  has  assumed  to  do.6  When  so  author- 
ized he  has,  like  other  agents,  implied  authority  to  do  what- 
ever is  necessary  and  proper  to  carry  his  authority  into  effect, 
including  herein  the  signing  of  the  necessary  memorandum.7 

price  of  the  goods,  the  signing  of  the  a  broker,  originally  employed  by  the 

purchaser's  name   by  the   clerk  of  buyer,  having  closed  a  bargain  with 

the  auctioneer,  upon  the  successful  the  sellers,  made  a  memorandum  of 

bid  being  announced,  is  a  sufficient  it,  at  the  time  and  in  their  presence, 

bid    within    the    statute.      Bird    v.  in   which  they    were    described   as 

Boulter,  4  B.  &  Ad.  443;  Browne  on  sellers,  it  was  held  that  the  sellers 

Frauds,  sec.  3G9;  Durrell  v.  Evans,  1  thereby    recognized    him    as    their 

H.  &  C.  174-188;  Gill  v.  Bickhell,  2  agent    also.      Clason    v.    Bailey,  14 

<  ash.  (Mass.)  355."  See  also  Wood  on  Johns.  (N.  Y.)  484. 
Statute  of  Frauds,  §  427.  6 Their  assent  may    be  presumed 

1  Mechem  on  Agency,  §§  943,  953.  where  they  receive  and  retain  with- 

2Mechem  on  Agency,  ^  943,   953.  out  dissent  a  memorandum  of  the 

3  Wood  on  Statute  of  Frauds,  §429;  sale  made  by  the  broker  as  their 
Butler  v.  Thomson,  92  U.  S.  412;  New-  agent  as  well  as  of  the  other  party, 
berry  v.  Wall,  84  X.  Y.  570;  Bacon  v.  Newberry  v.  Wall,  35  N.  Y.  Super. 
Eccles,  43  Wis.  227;  Coddington  v.  Ct.  100;  s.  c,  05  N.  Y.  484;  s.  a,  84 
Goddard,  16  Gray  (Mass.),  436.  N.  Y.  576:  Remick  v.  Sandford,  118 

4  Coddington  v.  Goddard,  supra.  Mass.  102. 

5  Bacon  v.  Eccles,  supra.   So  where        1  Coddington  v.  Goddard,  supra. 

382 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF    FRAUDS.       [§§  465— ±G7. 

§465.  When  special  agent. —  Where,  however,  he  is 

thus  authorized  to  represent  the  other  party  in  a  single  trans- 
action inaugurated  by  the  broker  as  agent  of  the  first,  he  is 
deemed  to  be  a  special  agent,  and  he  will  not  bind  such  other 
party  unless  he  keeps  within  the  limits  of  the  authority  con- 
ferred upon  him.1 


8  466. 


When  not  authorized  to  sign. —  And  where  he 


is  not  employed  to  make  the  contract,  but  simply  acts  as  a  go- 
between  to  bring  together  the  parties,  who  make  the  contract 
themselves,  he  has  no  implied  authority  therefrom  to  after- 
wards make  any  memorandum  of  the  contract  at  all.2 

§467.  (i Bought  and  sold  notes"  in  the  English  practice. 

In  England,  the  usages  of  London  have  entered  very  greatly 
into  the  law  upon  this  subject,  and  the  rights  and  obligations 
of  the  parties  are  therefore  much  governed  by  the  established 
usages  controlling  the  London  broker.  When  such  a  broker 
has  succeeded  in  making  a  contract,  says  Mr.  Benjamin  in  his 


1  Thus  in  Coddington  v.  Goddard, 
siqira,  where  the  broker,  acting  pri- 
marily for  the  buyer,  did  not  include 
in  the  memorandum  terms  and  con- 
ditions upon  which  the  seller  author- 
ized him  to  close  the  sale,  it  was  held 
that  the  seller  was  not  boimd.  Said 
the  court:  "A  broker,  from  the  very 
nature  of  his  employment,  has  only 
a,  limited  authority,  when  it  appears, 
as  it  does  in  the  present  case,  that  lie 
had  no  relation  to  a  party,  other  than 
what  is  derived  from  a  single  con- 
tract of  sale.  When  he  applies  to  a 
vendor  to  negotiate  a  sale,  he  is  not 
his  agent.  He  does  not  become  so 
until  the  vendor  enters  into  the 
agreement  of  sale.  It  is  from  this 
agreement  that  he  derives  his  au- 
thority, and  it  must  necessarily  be 
limited  by  its  terms  and  conditions. 
He  is  then  the  special  agent  of  the 


vendor  to  act  in  conformity  with  the 
contract  to  which  his  principal  has 
agreed,  but  no  further,  and  he  can- 
not be  regarded  as  his  agent,  unless 
he  complies  with  the  terms  of  his 
special  authority  as  derived  from  the 
contract.  In  short,  a  broker  is  au- 
thorized to  sign  only  that  contract 
into  which  the  vendor  has  entered, 
not  another  and  different  contract. 
If  he  omits  to  include  in  the  memo- 
randum special  exceptions  and  con- 
ditions to  the  bargain,  he  signs  a 
contract  which  he  has  no  authority 
to  make,  and  the  party  relying  upon 
it  must  fail,  because  it  is  shown  that 
the  broker  was  not  the  agent  of  the 
vendor  to  sign  the  contract."  To 
same  effect:  Eemick  v.  Sandford,  118 
Mass.  102. 

2  Aguirre  v.  Allen,  10  Barb.  (N.  Y.) 
7-4. 


88\ 


§  467.]  LAW    OF    SALE.  [BOOK    I. 

work  on  Sales,1 "  he  reduces  it  to  writing,  and  delivers  to  each 
party  a  copy  of  the  terms  as  reduced  to  writing  by  him.  He 
also  ought  to  enter  them  in  his  book  and  sign  the  entry.  What 
he  delivers  to  the  seller  is  called  the  sold  note;  to  the  buyer, 
the  bought  note.  No  particular  form  is  required,  and  from  the 
cases  it  seems  that  there  are  four  varieties  used  in  practice. 
The  Jlrst  is  where  on  the  face  of  the  notes  the  broker  professes 
to  act  for  both  the  parties  whose  names  are  disclosed  in  the 
note.  The  sold  note,  then,  in  substance,  says,  '  Sold  for  A  B 
to  C  D,'  and  sets  out  the  terms  of  the  bargain ;  the  bought  note 
begins,  '  Bought  for  C  D  of  A  B,'  or  equivalent  language,  and 
sets  out  the  same  terms  as  the  sold  note,  and  both  are  signed 
by  the  broker.  The  second  form  is  where  the  broker  does  not 
disclose  in  the  bought  note  the  name  of  the  vendor,  nor  in  the 
sold  note  the  name  of  the  purchaser,  but  still  shows  that  he  is 
acting  as  broker,  not  principal.  The  form  then  is  simply, 
'Bought  for  C  D'  and  'Sold  for  A  B.'  The  third  form  is 
where  the  broker,  on  the  face  of  the  note,  appears  to  be  the 
principal,  though  he  is  really  only  an  agent.  Instead  of  giv- 
ing to  the  buyer  a  note,  'Bought  for  you  by  me,'  he  gives  it  in 
this  form :  '  Sold  to  you  by  me.'  By  so  doing  he  assumes  the 
obligation  of  a  principal,  and  cannot  escape  responsibility  by 
parol  proof  that  he  was  only  acting  as  broker  for  another,  al- 
though the  party  to  whom  he  gives  such  a  note  is  at  liberty  to 
show  that  there  was  an  unnamed  principal,  and  to  make  this 
principal  responsible.  The  fourth  form  is  where  the  broker 
professes  to  sign  as  a  broker  but  is  really  a  principal,  as  in  the 
cases  of  Sharman  v.  Brandt2  and  Robinson  v.  Mollett?  in  which 
case  his  signature  does  not  bind  the  other  party,  and  he  cannot 
sue  on  the  contract. 

"  According  to  either  of  the  first  two  forms,  the  party  who 
receives  and  keeps  a  note,  in  which  the  broker  tells  him  in  ef- 
fect, 'I  have  bought  for  you,  or  I  have  sold  for  you,'  plainly 
admits  that  the  broker  acted  by  his  authority  and  as  his  agent, 
and  the  signature  of  the  broker  is  therefore  the  signature  of 


i  §  276.  2  l.  R.  6  Q.  B.  720.  3  l.  R.  7  H.  L.  802,  14  Eng.  R  177. 

884 


CH.  YII.]  CONTRACT    UNDER    STATUTE   OF   FRAUDS.  [§  ±QS. 

the  party  accepting  and  retaining  such  a  note;  but  according 
to  the  third  form,  the  broker  says,  in  effect,  '  I  myself  sell  to 
you,'  and  the  acceptance  of  a  paper  describing  the  broker  as 
the  principal  who  sells,  plainly  repels  any  inference  that  he  is 
acting  as  agent  for  the  party  who  buys,  and,  in  the  absence  of 
other  evidence,  the  broker's  signature  would  not  be  that  of  an 
agent  of  the  party  retaining  the  note;  and  by  the  fourth  form, 
the  language  of  the  written  contract  is  at  variance  with  the 
real  truth  of  the  matter." 

§  468.  English  rules  gOTerning  the  bought  and  sold 

notes. —  As  to  the  rules  governing  the  bought  and  sold  notes, 
Mr.  Benjamin  gives  the  following  summary: l 

"First  —  The  broker's  signed  entry  in  his  book  constitutes 
the  contract  between  the  parties,  and  is  binding  on  both.2 

"  Secondly  —  The  bought  and  sold  notes  do  not  constitute  the 
contract.3 

"Thirdly  —  But  the  bought  and  sold  notes,  when  they  cor- 
respond and  state  all  the  terms  of  the  bargain,  are  complete 
and  sufficient  evidence  to  satisfy  the  statute;  even  though  there 
be  no  entry  in  the  broker's  book,  or,  what  is  equivalent,  only 
an  unsigned  entry.4 

i  Benjamin  on  Sales,  §  294.  overruled  in  Sievewright  v.  Archi- 

z  "This  proposition  rests  on  the  au-  bald..  17  Q.  B.  103,  20  L.  J.  Q.  B.  529." 

thority  of  Lord  Ellenborough  in  Hey-  3 "  This  is  the  opinion  of  Parke,  B., 

man  v.  Neale,2  Camp.  337, of  Parke,  B.,  in  Thornton  v.  Charles,  9  M.  &  W.  802, 

in  Thornton  v.  Charles,  9  M.  &  W.  of  Lord  Ellenborough  in  Heyman  v. 

802,  and  of  Lord  Campbell,  C.  J.,  and  Neale,  2    Camp.  337,  and  was  the 

Wightman    and    Patteson,  JJ.,    in  unanimous  opinion  of  the  four  judges 

Sievewright  v.  Archibald,  17  Q.  B.  in  Sievewright  v.  Archibald,  17  Q.  B. 

103,  20  L.  J.  Q.B.  529  (and  of  the  court  103.     The  decision  to  the  contrary, 

in  Thompson  v.  Gardiner,  1  C.  P.  D.  in  the  nisi  prius  case  of  Thornton  v. 

777).     Gibbs,  C.  J.,  in  Cumming  v.  Meux,  M.  &  M.  43,  and  the  dictum 

Roebuck,  Holt,  172;  Abbott,  C.  J.,  in  Goom  v.  Aflalo,  6  B.  &  C.  117,  and 

Thornton  v.  Meux,  M.  &  M.  43;  Den-  Trueman  v.  Loder,  11  Ad.  &  E.  589, 

man,  C.  J.,  in  Townend   v.   Drake-  are  pointedly  disapproved  in  the  case 

ford,  1  Car.  &  K.  20,  and  Lord  Abin-  of  Sievewright  v.  Archibald,  17  Q.  B. 

ger  in  Thornton  v.  Charles,  9  M.  &  103,  20  L.  J.  Q.  B.  529." 

W.  802,  are  authorities  to  the  con-  4 "  This  was  first  settled  by  Goom 

trary,  but  they  seem  to  have  been  v.  Aflalo,  6  B.  &  C.  117,  and  reluct- 
25                                               385 


§  468.]  LAW    OF    SALE.  [BOOK    I. 

"  Fourthly  —  Either  the  bought  or  sold  note  alone  will  sat- 
isfy the  statute,  provided  no  variance  be  shown  between  it 
and  the  other  note,  or  between  it  and  the  signed  entry  in  the 
book.1 

"  Fifthly  —"Where  one  note  only  is  offered  in  evidence,  the 
defendant  has  the  right  to  offer  the  other  note  or  the  signed 
entry  in  the  book  to  prove  a  variance.2 

"Sixthly  —  As  to  variance.  This  may  occur  between  the 
bought  and  sold  notes  where  there  is  a  signed  entry,  or  where 
there  is  none.  It  may  also  occur  when  the  bought  and  sold 
notes  correspond,  but  the  signed  entry  differs  from  them.  If 
there  be  a  signed  entry,  it  follows  from  the  authorities  under 
the  first  of  these  propositions  that  this  entry  will  in  general 
control  the  case,  because  it  constitutes  the  contract  of  which 
the  bought  and  sold  notes  are  merely  secondary  evidence,  and 
any  variance  between  them  could  not  affect  the  validity  of  the 
original  written  bargain.  If,  however,  the  bought  and  sold 
notes  correspond,  but  there  be  a  variance  between  them  taken 
collectively  and  the  entry  in  the  book,  it  becomes  a  question  of 
fact  for  the  jury  whether  the  acceptance  by  the  parties  of  the 
bouo-ht  and  sold  notes  constitute  evidence  of  a  new  contract 
modifying1  that  which  was  entered  in  the  book.3 

"  Seventhly  —  If  the  bargain  is  made  by  correspondence,  and 
there  is  a  variance  between  the  agreement  thus  concluded  and 

antly  admitted  to  be  no  longer  ques-  for  granted  that  the  defendant  may 

tionable  in  Sievewright  v.  Archibald,  produce  his  own  bought  or  sold  note 

17  Q.  B.  103,  20  L.  J.  Q.  B.  529."  to  show  that  it  does  not  correspond 

1  "  This  was  the  decision  in  Hawes  with  the  plaintiff's." 

Y-  Forster,  1  Mood.  &  Rob.  368,  of  the  3  "  This  is  the  point  established  by 
common  pleas  in  Parton  v.  Crofts,  16  Hawes  v.  Forster,  1  Mood.  &  R.  368, 
C.  B.  (N.  S.)  11,  33  L.  J.  C.  R  189  (and  according  to  the  explanation  of  that 
of  the  common  pleas  division  in  case  first  given  by  Parke,  B.,  in  Thorn- 
Thompson  v.  Gardiner,  1  C.  P.  D.  ton  v.  Charles,  9  M.  &  W.  802,  after- 
777)."'  wards  by  Patteson,  J.,  in  Sievewright 

2  "Hawes  v.  Forster,  1  Mood.  &  v.  Archibald,  17  Q.  B.  103,  20  L.  J. 
Rob.  368,  is  direct  authority  in  rela-  Q.  B.  529,  and  adopted  by  the  other 
tion  to  the  entry  in  the  book,  and  in  judges  in  this  last-named  case."  But 
all  the  cases  on  variance,  particularly  the  variance  must  be  one  in  meaning 
in  Parton  v.  Crofts,  supra,  it  is  taken  and  not  in  language  merely. 

386 


CH.  VII.]  CONTRACT    UNDER    STATUTE    OF   FRAUDS.  [§  409. 

the  bought  and  sold  notes,  the  principles  are  the  same  as  those 
just  stated  which  govern  variance  between  a  signed  entry  and 
the  bought  and  sold  notes.1 

"  Eighthly  —  If  the  bought  and  sold  notes  vary,  and  there  is 
no  signed  entry  in  the  broker's  book,  nor  other  writing  show- 
ing the  terras  of  the  bargain,  there  is  no  valid  contract.2 

"  Lastly  —  If  a  sale  be  made  by  a  broker  on  credit,  and  the 
name  of  the  purchaser  has  not  been  previously  communicated 
to  the  vendor,  evidence  of  usage  is  admissible  to  show  that  the 
vendor  is  not  finally  bound  to  the  bargain  until  he  has  had  a 
reasonable  time,  after  receiving  the  sold  note,  to  inquire  into 
the  sufficiency  of  the  purchaser,  and  to  withdraw  if  he  disap- 
proves." 3 

§  469.  "  Bought  and  sold  notes  "  in  the  United  States. 

The  usages  of  the  London  brokers  have  not  been  generally 
adopted  in  the  United  States,  though  "  bought  and  sold  notes1' 
are  not  rare;  but,  in  general,  here  the  broker's  book  constitutes 
the  appropriate  place  for  his  entry,4  and  such  entries,  as  has 
been  seen  in  the  preceding  sections,  are  looked  upon  with  favor; 
and,  however  informal  or  inartificial  they  may  be,  if  they  con- 
tain the  essential  elements  of  the  contract  and  are  duly  signed 

1  "As    decided    in    Hey  worth    v.  note  signed  by  the  broker  and  sent 

Knight,  17  C.  B.  (N.  S.)  298,  33  L.  J.  to  the  defendant." 
C.  P.  298."  3  "This  was  decided  in  Hodgson  v. 

2 "  This  is  settled  by  Thornton  v.  Davies,  2  Camp.  530,  and  as  the  spe- 

Kempster,  5  Taunt,  786:    dimming  cial  jury  spontaneously  intervened 

v.  Roebuck,  Holt,  172;  Thornton  v.  in  that  case,  and  the  usage  was  held 

Meux,  1 M.  &  M.  43;  Grant  v.  Fletcher,  good  without  proof  of  it,  it  is  not  im- 

5  B.  &   C.  436;    Gregson  v.  Rucks,  probable  that  the  custom  might  now 

4  Q.  B.  737,  and  Sievewright  v.  Archi-  be  considered  as  judicially  recognized 

bald,  17  Q.  B.  103,  20  L.  J.  Q.  B.  529.  by  that  decision,  and  as  requiring  no 

The  only  opinion  to  the  contrary  is  proof.     See  Brandao   v.    Barnett,    3 

that  of  Erie,  J.,   in  the  last-named  C.  B.  519,  on  appeal  to  H.  of  L.  (s.  C, 

case.    In  one  case,  however,  at  nisi  12  CI.  &  Fin.  787),  as  to  the  necessity 

pHus  (Rowe  v.  Osborne,  1  Stark.  140),  for  proving  mercantile  usages.    Also, 

Lord  Ellenborough  held  the  defend-  1  Smith's  L.  C.  602  (ed.  1879);  but  it 

ant  bound  by  his  own  signature  to  a  would  certainly  be  more  prudent  to 

bought  note  delivered  to  the  vendor,  offer  evidence  of  the  usage." 
-which  did  not  correspond  with  the        4  Bacon  v.  Eccles,  43  Wis.  227. 

387 


§§  470-472.]  LAW   OF   SALE.  [book   I. 

in  such  manner  as  signing  has  been  found  to  be  required,  they 
will  suffice. 

If,  however,  the  parties  adopt  the  English  system,  the  rules 
laid  down  by  the  English  courts  would  of  course  be  applicable.1 

§470.  Revocation  of  broker's  authority. —  The  au- 
thority of  the  broker,  like  that  of  any  other  agent  not  coupled 
with  an  interest,2  may  be  revoked  at  any  time  before  he  has 
acted,  as  in  making  the  memorandum ; 3  but  after  he  has  signed, 
if  duly  authorized,  the  principal  cannot  withdraw,  except  in 
the  case,  warranted  by  usage  in  England,  of  a  sale  by  the  agent 
on  credit  to  a  person  not  previously  disclosed,  in  which  event 
the  principal  may  withdraw  within  a  reasonable  time  after  re- 
ceiving the  sale  note,  if,  on  inquiry,  he  is  dissatisfied  with  the 
responsibility  of  the  purchaser.4 

§471.  Signing  by  partner. —  Not  only  may  the  signature 
of  the  agent  to  the  memorandum  evidencing  his  contract  for 
his  principal  bind  the  principal,  but  also  the  signature  of  one 
partner  to  a  memorandum  evidencing  an  agreement  made  by 
him  on  behalf  of  the  partnership  and  within  the  scope  of  its 
business  will  bind  the  other  partners;  and  this  is  upon  the 
basic  rule  of  all  partnerships  that  the  act  of  one  partner,  within 
the  scope  of  the  partnership  business,  is  the  act  of  the  copart- 
nership.5 

e.  Of  Alteration  of  the  Memorandum. 

§  472.  Alteration  of  executed  memorandum. —  In  general 
a  material  alteration  of  an  instrument  by  one  party  destroys 
its  effect  in  conferring  any  rights  whatever  upon  him;6  and 
the  other  party,  at  his  option,  may  repudiate  it  altogether  or 

iThus  if  "bought  and  sold  notes"  339,  n.;  Warwick  v.  Slade,  3  Camp, 

are  given,  a  material  variance   be-  127. 

tween  them  will  vitiate  them.  Bacon  *  Hodgson  v.  Davies,  2  Camp.  530. 
v.  Eccles,  43  Wis.   227;  Suydam  v.  » California  Canneries  Co.  v.  Sea- 
Clark,  2  Sandf.  (N.  Y.)  133;  Peltier  v.  tena,  117  Cal.  447,  49  Pac.  R  462. 
Collins,  3  Wend.  (N.  Y.)  459.  6  gee  Bishop  on  Contracts,  §  746  et 

2Mechem  on  Agency,  §  938.  seq. 

8  Farmer    v.    Robinson,    2    Camp. 

383 


<3H.  VII.]  CONTRACT    UNDER    STATUTE   OF    FRAUDS.       [§§  473,  474. 

rely  on  it  in  its  original  state.1  Hence,  if  the  seller  makes,  or 
causes  to  be  made,  a  material  alteration  in  the  memorandum 
after  it  has  taken  effect,  he  cannot  ignore  the  alteration  and 
enforce  it  as  it  stood.2 

§  473.  Memorandum  not  to  be  altered  by  parol. —  And  so, 

as  has  been  seen,3  the  completed  memorandum  is  not  to  be 
altered  or  modified  by  parol.  Hence,  "  where  a  contract,  af- 
fected by  the  statute,  has  been  put  in  writing,  and  the  plaint- 
iff, in  a  case  of  subsequent  oral  variation  of  some  of  the  terms 
of  the  written  agreement,  declares  upon  the  writing  as  quali- 
fied by  the  oral  variation,  he  cannot  prevail."4 

§  474.  Discharge  or  substitution  of  agreement  may  be 
shown. —  But  this  rule  seems  not  to  prevent  a  showing  by 
parol  that  the  written  agreement  which  was  required  by  the 
statute  of  frauds  has  been  wholly  discharged,  or  that  some  new 
and  different  agreement  has  been  substituted  for  it.5 

i  Bishop  on  Contracts,  §  748.  ley  v.  Swanstrom,  40  Minn.  196,  41  N. 

2 Powell  v.Divett (1812),  15 East,  29;  W.  R.  1029;  Hill  v.  Blake,  97  N.  Y. 

Mollett  v.  Wackerbarth  (1847),  5  Corn.  216;  Carpenter  v.  Galloway,  73  Ind. 

B.  181,  17  L.  J.  Com.  P.  47,  57  Eng.  418;  Rucker  v.  Harrington,  52  Mo. 

Com.  Law,  180.  App.  481. 

3  See  ante,  §  446  et  seq.  5  See  Browne,  Statute  of  Frauds, 

4  Browne  on  Statute  of  Frauds,  §§  429-436;  Greenleaf  on  Evidence, 
§411;  Augusta  Southern  R.  Co.  v.  §302;  Cummings  v.  Arnold  (1842),  3 
Smith  (1899),  106  Ga.  864,  33  S.  E.  R.  Mete.  (Mass.)  486,  37  Am  Dec.  155; 
28;  Burns  v.  Fidelity  Real  Estate  Co.,  Stearns  v.  Hall  (1851),  9  Cush.  (Mass.) 
52  Minn.  31,  53  N.  W.  R.  1017;  Heis-  31. 

3S9 


BOOK  II. 

OF  THE  EFFECT  OF  THE  CONTRACT  IN  PASSING 

TITLE. 


CHAPTER  I. 

PURPOSE  OF  BOOK  IL 


480.  Specific    or    unascertained 
goods. 

481.  How  questions  classified. 


§  475.  Subjects  yet  to  be  considered. 

476.  Executory  and  executed  con- 
tracts. 

477-479.  Intention  of  parties 

as  the  test. 

g  475.  Subjects  yet  to  be  considered.— Having  considered 
the  questions  of  the  making  of  the  contract,  the  parties  to  it, 
and  its  form  and  sufficiency,  it  next  remains  to  consider  the 
effect  of  the  contract  in  passing  title  to  the  property  which 
was  the  subject-matter  of  the  contract.  This  question  depends 
largely  upon  the  distinction  between  executory  and  executed 
contracts. 

§476.  Executory  and  executed  contracts.- As  has  been 
already  seen,  a  distinction  is  to  be  taken  between  a  present  sale, 
jM  present  transfer  of  the  title,  and  an  agreement  to  sell,  by 
virtue  of  which  the  title  is  to  be  transferred  at  some  future  time. 
The  first  is  the  executed  contract  or  sale  proper;  the  latter  is 
the  executory  contract  or  the  contract  for  a  sale. 

Xow  it  is  entirely  competent  for  the  parties  to  make  either 
form  of  contract,  and  where  they  have  clearly  and  unambig- 
uously made  one  form  or  the  other  there  can  be  no  difficulty. 
The  difficulty  arises  in  those  cases  in  which  they  either  had  no 
definite  intention  at  all,  or,  if  they  had,  they  have  failed  to 
make  it  clear. 


§§  4T7,  478.]  LAW  OF  SALE.  [BOOK  II. 

The  consequences,  however,  are  material ;  for  if  the  title  has 
not  yet  passed,  the  intending  seller  is  charged  with  the  respon- 
sibility for  the  goods,  is  liable  for  their  loss,  has  no  present 
claim  for  the  price,  but,  at  the  same  time,  he  has  incurred  as 
yet  no  risk  of  not  getting  his  pay.  If  the  contract  be  executed, 
on  the  other  hand,  all  this  is  changed;  for  the  risk  of  the  goods 
has  passed  to  the  purchaser,  who  is  liable  for  the  price,  while 
the  seller  has  either  the  price  in  hand  or  the  right  to  it,  and 
may  have  a  lien  upon  the  goods  to  secure  its  payment. 

§  477.  Intention  of  the  parties  is  the  criterion.— 

The  question  of  possession  is  sometimes  significant,  but  it  is 
not  the  criterion;  for,  as  will  be  seen,  the  title  may  pass  though 
the  seller  retains  possession,  or  the  title  may  be  retained  though 
possession  has  been  given  to  the  prospective  purchaser.  The 
true  criterion  is  the  intention  of  the  parties,  to  be  discovered, 
when  possible,  from  their  express  declarations;  and  where  this 
is  not  possible,  to  be  gathered  from  all  the  circumstances  of 
the  case,  as  well  as  from  their  declarations,  if  any. 

§  478.  .  There  are,  however,  many  incidents  which,  as 

will  be  seen,  are  ordinarily  regarded  as  raising  a  presumption 
that  the  title  has  or  has  not  passed,  though  this  presumption 
yields  to  the  intention.  For  example,  it  is  said,1  "  Though  by 
the  general  rule  of  law  the  sale  is  not  complete  if  anything 
remains  to  be  done  between  the  parties,  yet  they  may  agree, 
either  expressly  or  tacitly,  to  change  this,  and  that  the  title  to 
the  property  shall  pass  at  once.  Conditio  quce  initio  contractus 
dicta  est,  postea  alia  jpactione  immutari  potest.2  Thus,  though 
it  is  implied  that  a  sale  is  for  ready  money  unless  otherwise 
agreed,  yet  the  condition  to  pay  immediately  may  be  waived, 
and  the  goods  at  once  passed  to  the  buyer.3  Writings  may  be 
agreed  to   be  made,  but  this  stipulation  may  be  changed  or 

1  In  Fuller  v.  Bean  (1857),  34  N.  II.  3  Citing  2  Kent,  Cora.  496;  Schind- 
290.  ler  v.   Houston,  1  Denio  (N.  Y.),  48; 

2  Citing  Dig.   18,  1,  6;    Alexander  Mixer  v.  Cook,  31  Me.  340;  Blackb. 
v.  Gardner,  1  Bing.  N.  C.  671;  2  Kent,  Sale,  147. 

Com.  496;  Blackb.  on  Sale,  160. 

392 


CH.  I.]  PURPOSE    OF   BOOK    II.  [§§  479,  480. 

waived.1  Measures  to  ascertain  quantity  or"  price  may  be  agreed 
upon,  but  tacitly  waived  or  expressly  postponed,  or  dispensed 
with."2 

§  479.  .  So  it  was  said  by  Lord  Brougham: 3  "  To  con- 
stitute a  sale  which  shall  immediately  pass  the  property,  it  is 
necessary  that  the  thing  sold  should  be  certain,  should  be 
ascertained  in  the  first  instance,  and  that  there  should  be  a 
price  either  ascertained  or  ascertainable.  But  the  parties  may 
buy  or  sell  a  given  thing,  nothing  remaining  to  be  done  for 
ascertaining  the  specific  thing  itself,  but  the  price  to  be  after- 
wards ascertained  in  the  manner  fixed  by  the  contract  of  sale, 
or  upon  a  quantum  valeat;  or  they  may  agree  that  the  sale 
shall  be  complete  and  the  property  pass  in  the  specific  thing, 
chattel  or  other  goods,  although  the  delivery  of  possession  is 
postponed,  and  although  nothing  shall  remain  to  be  done  by 
the  seller  before  the  delivery;  or  they  may  agree  that  nothing 
remains  to  be  done  for  ascertaining  the  thing  sold,  yet  that  the 
sale  shall  not  be  complete  and  the  property  shall  not  pass  till 
something  is  done  to  ascertain  the  amount  of  the  price.  The 
question  must  always  be,  what  was  the  intention  of  the  par- 
ties in  this  respect,  and  that  is  of  course  to  be  collected  from 
the  terms  of  the  contract.  If  those  terms  do  not  show  an  in- 
tention of  immediately  passing  the  property,  until  something 
is  done  by  the  seller  before  delivery  of  possession,  then  the 
sale  cannot  be  deemed  perfected,  and  the  property  does  not 
pass  until  that  thing  is  done." 

§  480.  Specific  or  unascertained  goods. —  In  addition  to  the 
question  of  the  executed  or  executory  nature  of  the  contract, 
the  character  and  situation  of  the  goods  are  material.  Are  the 
goods  specific  and  definitely  agreed  upon,  or  are  they  not  yet 
ascertained,  or  perhaps  not  yet  in  existence?  Are  they  now 
in  the  condition  in  which  they  are  to  be  delivered,  or  are  they 

1  Citing  Draper  v.  Jones,  11  Barb.  3  In  Logan  v.  Le  Mesurier,  G  Moore, 
(N.  Y.)  263.  P.  C.  116. 

2  Citing  Macomber  v.   Parker,   13 
Pick.  (Mass.)  175. 

393 


R  481.]  LAW  OF  SALE.  [BOOK  II. 

yet  to  be  fitted  for  delivery  ?  Are  they  separated  from  the  mass 
of  which  they  previously  formed  a  part,  or  are  they  still  in  the 
mass  and  yet  to  be  separated  and  set  apart  for  the  buyer  ?  These 
and  similar  questions  are  obviously  material ;  and  the  two  classes 
of  questions  present  a  variety  of  combinations. 

§  481.  How  questions  classified  .—  Attempting  to  group  these 
various  elements  in  logical  order  there  will  be  considered  here : 
I.  Unconditional  contracts  for  the  sale  of  specific  chattels. 
II.  Conditional  contracts  for  the  sale  of  specific  chattels. 

III.  Contracts  respecting  existing  chattels  not  yet  identified. 

IV.  Contracts  respecting  goods  to  be  manufactured  or  grown. 
Y.  Contracts  reserving  jus  disponendi. 

Each  of  these  will  be  made  the  subject  of  a  separate  chapter, 
and  together  these  questions  will  form  the  subject-matter  of 

Book  II. 

394 


CHAPTER  II. 

OF  THE  UNCONDITIONAL  SALE  OF  SPECIFIC  CHATTELS. 


§492, 


-  Or  though  goods  remain 
with  seller  as  bailee  for 
buyer. 

493-495.  Title  may  pass  though 
price  not  yet  paid. 

496-498.  Or  though  something 

remains  to  be  done  to  ascer- 
tain the  price. 

499.  The  question  is  one  of  inten- 

tion. 

500,  501.  Rules  for  determining  the 

intention. 
502.  Question  of  intention,  by  whom 
decided. 


§  482.  Purpose  of  this  chapter. 

483,  484.  Title  passes  at  once  on  un- 
conditional sale  of  specific 
chattel. 

485, 486.  Title  may  pass  though 
goods  not  delivered. 

487,  488.  Or  though   seller  is 

yet  to  make  delivery. 

489.  Or  though  seller  is  to  do 

some  other  act  before  de- 
livery. 

490.  Or  though  seller  is  to  do 

something  to  the  goods  after 
delivery. 

491.  Or  though  goods  are  in 

hands  of  seller's  bailee  or 
agent. 

§482.  Purpose  of  this  chapter.— It  is  proposed  in  this 
chapter  to  take  up  what  is  perhaps  the  simplest  and  most  com- 
mon of  the  several  combinations  of  questions  referred  to  in  the 
preceding  chapter,  namely,  the  case  of  the  unconditional  con- 
tract to  sell  a  specific  chattel.  And  the  particular  question 
will  be  this:  Where  the  parties  have  in  mind  a  definite,  ascer- 
tained and  existing  chattel,  and  they  respectively  agree  with- 
out condition  or  qualification  that  one  shall  then  sell  and  the 
other  shall  then  buy  that  particular  chattel,  what  is  the  effect 
of  their  agreement  upon  the  transfer  of  the  title  to  the  chattel  ? 

To  this  question  it  is  believed  that  the  law  returns  the  an- 
swer which  forms  the  substance  of  the  following  section,  viz.: 

§  483,  Title  passes  at  once  on  unconditional  sale  of  spe- 
cific chattel.— When  the  terms  of  the  contract  of  sale  have 
been  definitely  agreed  upon  and  the  goods  have  been  specific- 

395 


§  483.] 


LAW    OF    SALE. 


[book  IT. 


ally  ascertained,  and  nothing  remains  to  be  done  by  the  seller 
except  to  deliver  the  goods,  the  effect  of  the  contract,  as  be- 
tween the  parties  thereto,1  will,  unless  a  contrary  intention 
appears,  be  to  vest  the  title  to  the  property  immediately  in 
the  purchaser,  even  though  the  goods  have  not  yet  been  de- 
livered or  paid  for.  The  purchaser  cannot,  indeed,  take  the 
goods  away  until  he  has  paid  for  them,  unless  a  term  of  credit 
has  been  given,  but  the  title  and  therefore  the  risk  of  the  goods 
will  be  in  him,  and  the  seller  may  have  his  remedies  for  the 
price.2 

i  The  question  may  be  affected,  of  the  bargain  the  property  was  in  the 
course,  by  the  rules  which,  regulate 
the  effect,  so  far  as  creditors  and  sub- 
sequent purchasers  are  concerned,  of 
the  retention  of  possession  by  the 
seller.  See  post.  §§  963,  979.  But 
those  rulas  are  foreign  to  the  present 
consideration. 

2  In  Wade  v.  Moffett,  21  111.  110,  74 
Am.  Dec.  79,  Breese,  J.,  says:  "It  is 
a  general  rule  of  the  common  law  as 
to  sale  of  chattels,  that,  as  between 
the  vendor  and  vendee,  no  actual  de- 
livery, symbolical  or  otherwise,  is 
necessary,  the  completion  of  the  bar- 
gain being  all  that  is  requisite  to 
pass  the  title,  though  not  the  posses- 
sion, until  the  price  be  paid  or  satis- 
factorily arranged.  In  Noy's  Max- 
ims, as  quoted  by  Lord  Ellenborough, 
C.  J.,  in  Hinde  v.  Whitehouse  and 
Galan,  7  East,  558,  it  is  said:  '  If  I  sell 
my  horse  for  money,  I  may  keep  him 
until  I  am  paid;  but  I  cannot  have 
an  action  of  debt  until  he  be  deliv- 
ered; yet  the  property  of  the  horse  is 
by  the  bargain  in  the  bargainor  or 
buyer.  But  if  he  do  presently  tender 
me  my  money,  and  I  do  refuse  it,  he 
may  take  the  horse  or  have  an  action 
of  detainment.  And  if  the  horse  die 
in  my  stable  between  the  bargain 
and  delivery,  I  may  have  an  action 
of  debt  for  my  money,  because  by 


buyer.'    So  in  2  Bl.  Com.  448,  citing 
Noy.    Kent  says:  'When  the  terms  of 
sale  are  agreed  on,  and  the  bargain  is 
struck,  and  everything  that  the  seller 
has  to  do  with  the  goods  is  complete, 
the  contract  of  sale  becomes  absolute 
as  between  the  parties,  without  act- 
ual payment  or  delivery,  and  the  prop- 
erty and  the  risk  of  accident  to  the 
goods  vest  in  the  buyer.'    2  Kent's 
Com.    492.    In    Potter    v.    Cowand, 
Meigs,  22,  it  is  said:  'It  is  not  the  de- 
livery or  tender  of  the  property,  nor 
the  payment  or  tender  of  the  pur- 
chase-money,   which    constitutes    a 
sale.    The  sale  is  good  and  complete 
as  soon  as  both  parties  have  agreed 
to  the  terms  — then  the    rights   of 
both    are    instantly  fixed.     But    to 
have  an  action  for  the  price,  the 
seller  must  deliver  or  offer  to  deliver 
the  property.     If  he  tenders  a  deliv- 
ery of  the  property  and  demands  the 
purchase-money,  he  may  have  his 
action  of  debt  or  assumpsit  if  it  be 
refused.'    In  Willis  v.  Willis'  Adm'r, 
6  Dana,  48,  the  doctrine  was  declared 
that  a  sale  of  goods  becomes  abso- 
lute, the  property  vested  in  the  buyer 
and  at  his  risk,  as  soon  as  the  bargain 
is    concluded,  without  actual    pay- 
ment or  delivery.    In  Tarling  v.  Bax- 
ter, 6  Barn.  &  Cress.  360,  9  Dow.  & 
96 


CH.  II.]  UNCONDITIONAL   SALE   OF   SPECIFIC    CHATTELS.  [§  4S4. 


§  484.  .    The  rules  here  applicable  were  very  clearly 

stated  in  an  English  case  by  Parke,  J.,  as  follows:  "I  take  it 
to  be  clear  that  by  the  law  of  England  the  sale  of  a  specific 
chattel  passes  the  property  in  it  to  the  vendee  without  deliv- 


Ry.  272,  the  court  say:  'The  rule  of 
law  is  that  where  there  is  an  imme- 
diate sale,  and  nothing  remains  to  be 
done  by  the  vendor  as  between  him 
and  the  vendee,  the  property  in  the 
tiling  sold  vests  in  the  vendee,  and 
then  all  the  consequences  resulting 
from  the  vesting  of  the  property  fol- 
low, one  of  which  is  that  if.  it  be  de- 
stroyed the  loss  falls  on  the  vendee.' 
So  in  Gardner  v.  Howland,  2  Pick. 
599;  Shumway  v.  Rutter,  8  id.  443,  19 
Am.  Dec.  340:  Parsons  v.  Dickinson, 
11  id.  352.  The  same  doctrine  is  rec- 
ognized in  North  Carolina.  State  v. 
Fuller,  5  Ired.  L.  26.  So  in  Ohio,  the 
court  say,  in  Hooban  v.  Bidwell,  16 
Ohio,  509,  47  Am.  Dec.  386:  'The 
civil  law  required  a  delivery,  and  so, 
it  has  been  said,  did  the  common 
law.  But  we  think  delivery  not  nec- 
essary by  the  common  law  to  pass 
the  title  to  personal  property ;  that  a 
sale  without  it  is  complete  as  be- 
tween the  parties,  though  it  be  not 
so  as  to  affect  the  interests  in  certain 
cases  of  third  persons.'  In  New 
Hampshire  (Ricker  v.  Cross,  5  N.  H. 
571,  22  Am.  Dec.  480),  the  court  say: 
'The  general  rule  is  that  the  delivery 
of  possession  is  necessary  in  a  con- 
veyance of  personal  chattels  as 
against  every  one  except  the  vendor. 
Between  the  vendor  and  the  vendee 
the  property  will  pass  without  deliv- 
ery, but  not  with  respect  to  third 
persons  who  may  afterwards,  with- 
out notice,  acquire  a  title  to  the 
goods  under  the  vendor.  An  actual 
delivery  by  the  vendor  to  the  vendee 
is  not  in  all  cases  necessary.'  So  in 
Maine  (Wing  v.  Clark,  24  Me.  366),  it 


is  held  that  '  when  the  terms  of  sale 
of  personal  property  are  agreed  on, 
and  the  bargain  is  struck,  and  every- 
thing the  seller  has  to  do  witli  the 
goods  is  complete,  the  contract  of 
sale  becomes  absolute  without  actual 
payment  or  delivery,  and  the  prop- 
erty in  the  goods  is  in  the  buyer;  and 
if  they  are  destroyed  by  accidental 
fire  he  must  bear  the  loss.'  So  in 
Bradeen  v.  Brooks,  22  Me.  463.  A 
party  becomes  a  buyer  when  goods 
are  knocked  down  to  him  at  an  auc- 
tion. Hilliard  on  Sales,  323.  In  the 
case  of  Lansing  v.  Turner,  2  Johns. 
13,  the  court  held  to  the  rule  as  laid 
down  by  Blackstone;  and  Thomp- 
son, J.,  says:  'This  I  apprehend  to  be 
the  rule  in  all  cases  on  the  sale  of  a 
specific  chattel  where  the  identity  of 
the  article  cannot  be  controverted, 
the  inference  of  the  law  being  that 
the  vendor  is  a  mere  bailee,  retain- 
ing the  possession  at  the  request  of 
the  vendee.' " 

"  Wherever  there  is  a  sale  of  per- 
sonal property,  where  nothing  re- 
mains to  be  done  by  the  seller  before 
it  is  delivered,  the  property  passes  to 
the  buyer  without  delivery;  and  if 
injured  or  destroyed  after  the  sale, 
the  loss  falls  upon  the  purchaser,  and 
the  seller  is  entitled  to  payment  of 
the  price."  England  v.  Forbes,  7 
Houst.  (Del.)  301,  31  Atl.  R.  895.  See 
also  the  exhaustive  discussion  in 
Com.  v.  Hess  (1892),  148  Pa.  St.  98,  23 
Atl.  R.  977,  33  Am.  St.  R.  810. 

In  Cleveland  v.  Williams,  29  Tex. 
204,  94  Am.  Dec.  274,  Coke,  J.,  said : 
"  By  the  common  law,  if  the  seller 
make  a  proposition  and  the  buyer 


397 


§  485.]  LAW  OF  SALE.  [BOOK  II. 

ery.  .  .  .  Where  there  is  a  sale  of  goods  generally,  no  prop- 
erty in  them  passes  till  delivery,  because  until  then  the  very 
goods  sold  are  not  ascertained.  But  where  by  the  contract 
itself  the  vendor  appropriates  to  the  vendee  a  specific  chattel, 
and  the  latter  thereby  agrees  to  take  that  specific  chattel 
and  to  pay  the  stipulated,  price,  the  parties  are  then  in  the 
same  situation  as  they  would  be  after  a  delivery  of  the  goods 
in  pursuance  of  a  general  contract.  The  very  appropriation 
of  the  chattel  is  equivalent  to  delivery  by  the  vendor,  and  the 
assent  of  the  vendee  to  take  the  specific  chattel  and  to  pay  the 
price  is  equivalent  to  his  accepting  possession.  The  effect  of 
the  contract,  therefore,  is  to  vest  the  property  in  the  bargainee." ' 

§  485.  Title  may  pass  though  goods  not  yet  delivered. 

Following  the  general  rule  as  laid  down  in  the  preceding  section 
more  fully  into  details,  it  is  to  be  observed  that  the  title  to  the 
goods  may  often,  as  between  the  parties,2  pass  though  the  goods 
have  not  yet  been  delivered.  Assuming  that  the  statute  of 
frauds  is  not  involved  or  has  been  satisfied,  and  that  the  rights 
of  subsequent  purchasers  or  creditors  are  not  concerned,  it  is 
abundantly  settled  that  if  the  goods  are  fully  identified,  appro- 
priated to  the  contract,  and  are  in  condition  for  delivery,  and 
if  the  terms  of  the  contract  are  agreed  upon,  the  title  will,  un- 
less a  contrary  intention  appears,  pass  at  once  upon  the  comple- 
tion of  the  contract,  even  though  the  goods  are  not  delivered,3 

accept,  and  the  goods  are  in  the  pos-  (N.  S.)  84;  Turley  v.  Bates,  2  H.  &  C. 

session  of  the  seller,  and  nothing  re-  200 ;  Chambers  v.  Miller,  13  C.  B.  (N.  S.) 

mains  to  be  done  to  identify  them,  or  125;  Hmde   v.  Whitehouse,  7   East, 

in  any  way  prepare  them  for  deliv-  558;  Tarling  v.  Baxter,  6  B.  &  C.  360; 

ery,  the  sale  is  complete,  and  the  Martindale  v.   Smith,   1   Q.   B.  389; 

property  in  the  goods  passes  at  once.  Wood  v.  Bell,  6  E.  &  B.  355. 
The  buyer  acquires  not  a  mere  jus  ad        2  It  must  be  kept  in  mind  that  the 

rent,  but  an  absolute  jus  in  re,  and  he  question  of  the  validity  of  sales  as 

may  demand  delivery  at  once    on  against    creditors     and    subsequent 

tender  of  the  price,  and  sue  for  the  purchasers   is  not  now  being  dealt 

goods  as  his  own  if  delivery  be  re-  with.     There,  as  will  be  seen,  differ- 

fused.     2  Kent's  Com.  492;  2  Parsons  ent  considerations  are  involved  and 

on  Contracts  (4th  ed.),  320;  1  id.  441;  an  actual  change  of  possession  often 

Story  on  Sales,  sec.  300."  requisite.     See  post,  %%  962,  979. 

1  Dixon  v.  Yates,  5  B.  &  Ad.  313,        :i "  Standard  authorities,"  said  the 

340.    See  also  Joyce  v.  Swann,  17  C.  B.  United    States    supreme    court    in 

398 


CH.  II.]  UNCONDITIONAL    SALE   OF    SPECIFIC    CHATTELS.  [§  485. 


or,  as  will  be  seen  in  a  later  section,  notwithstanding  that  the 
price  has  not  yet  been  paid.1  As  stated  in  a  recent  Minnesota 
case,2  "  Contracts  for  the  purchase  and  sale  of  chattels,  if  com- 
plete and  unconditional,  and  not  within  the  statute  of  frauds, 


Hatch  v.  Oil  Co.,  100  U.  S.  124,  "show 
that  where  there  is  no  manifestation 
of  intention,  except  what  arises  from 
the  terms  of  sale,  the  presumption  is, 
if  the  thing  to  be  sold  is  specified 
and  it  is  ready  for  immediate  deliv- 
ery, that  the  contract  is  an  actual 
sale,  unless  there  is  something  in  the 
subject-matter  or  attendant  circum- 
stances to  indicate  a  different  inten- 
tion." That  delivery  in  such  cases 
is  not  essential  to  the  transfer  of  the 
title:  Rail  v.  Little  Falls  Lumber 
Co.,  47  Minn.  422,  50  N.  W.  R.  471; 
Penley  v.  Bessey,  87  Me.  530,  33  Atl. 
R.  21;  Cummings  v.  Oilman,  90  Me. 
.524,  38  Atl.  R.  538;  Com.  v.  Hess,  148 
Pa.  St.  98,  23  AtL  R.  977,  33  Am.  St. 
R.  810;  Clinton  Nat.  Bank  v.  Sfcude- 
mann.  74  Iowa,  104,  37  N.  W.  R.  112; 
England  v.  Forbes,  7  Houst.  (Del.) 
301,  31  Atl.  R.  895;  Fletcher  v.  Nel- 
son, 6  N.  Dak.  94,  69  N.  W.  R.  53; 
Benedict,  etc.  Mfg.  Co.  v.  Jones,  64 
Mo.  App.  218;  Kneeland  v.  Renner, 
2  Kan.  App.  451,  43  Pac.  R.  95;  Suth- 
erland v.  Brace,  34  U.  S.  App.  638, 73 
Fed.  R.  624, 19  C.  C.  A.  589 ;  Montgomery 
Furn.  Co.  v.  Hardaway,  104  Ala.  100, 
16  S.  R.  29;  Briggs  v.  United  States, 
143  U.  S.  346;  Albemarle  Lumber  Co. 
v.  Wilcox,  105  N.  C.  34,  10  S.  E.  R. 
871;  Scarbrough  v.  Alcorn,  74  Tex. 
358,  12  S.  W.  R.  72. 

In  Leonard  v.  Davis,  1  Black  (U.  S.), 
470,  where  there  was  a  written  con- 
tract reciting  that  one  party  had 
"  bought  of  "  the  other  certain  logs, 
described  by  their  location,  at  so 
much  per  thousand  feet  for  a  certain 


quality,  less  per  thousand  for  an  in- 
ferior quality,  all  not  merchantable 
to  be  rejected,  the  scaling  and  sort- 
ing to  be  done  by  a  person  desig- 
nated, it  was  held  that  the  property 
in  the  logs  passed  to  the  vendee  by 
the  force  of  the  contract;  since  noth- 
ing remained  to  be  done  by  the  seller, 
the  title  passed  to  the  buyer  at  the 
time  the  contract  was  executed. 

Likewise  in  First  Nat.  Bank  of 
Ottumwa  v.  Reno,  73  Iowa,  145,  34  N. 
W.  R.  796,  where  the  words  of  the 
written  contract  were,  '"I  hereby 
sell,"  it  was  held  that  this  phrase 
clearly  indicated  the  intention  of  the 
parties  to  make  a  present  sale  and 
transfer  of  the  property,  notwith- 
standing that  it  was  not  delivered, 
and  that  the  price  remained  un- 
ascertained, dependent  upon  the  con- 
dition of  the  property  in  the  future. 
So  also  in  Ruthrauff  v.  Hagenbuch, 
58  Pa.  St.  103.  there  was  a  written 
contract  which  recited  that  the 
vendor  hereby  agrees  to  sell  and 
doth  sell  "the  said  tobacco  which  is 
herein  and  hereby  now  delivered; "  it 
was  held  a  complete  sale,  and  that 
the  loss  of  the  tobacco  occasioned  by 
a  flood  fell  upon  the  vendee.  In 
Rail  v.  Little  Falls  Lumber  Co.,  47 
Minn.  122,  50  N.  W.  R.  471,  where  the 
wording  of  the  contract  was  essen- 
tially the  same,  the  court  placed  no 
peculiar  emphasis  upon  this  fait,  but 
held  from  other  circumstances  that, 
as  nothing  remained  to  be  done  by 
the  parties  in  completion  of  the  sale, 
the  title  passed.     In  all  these  cases 


i  Post,  §§  493-495. 


2  Rail  v.  Little  Falls  Lumber  Co.,  supra. 
399 


§  486.] 


LAW    OF    SALE. 


[BOOK    II. 


are  sufficient  as  between  the  parties  to  vest  the  property  in  the 
purchaser  without  delivery.  The  rule  is  that  when  the  chat- 
tels are  clearly  designated  and  appropriated  to  the  contract, 
are  ready  for  immediate  delivery,  and  the  terms  of  sale,  includ- 
ing the  price,  are  explicitly  given,  there  is  an  executed  contract, 
and  the  title  to  the  property,  as  between  the  parties,  passes  to 
the  purchaser,  even  without  actual  payment  or  delivery." 

g  486.  .  This  general  rule,  however,  yields  to  evidence 

of  a  contrary  intention,  and  the  existence  of  such  a  contrary 


save  the  last,  the  wording  of  the 
agreement  has  been  held  significant 
of  the  true  intention  of  the  parties 
and  of  the  character  of  the  trans- 
action. This  intention  in  all  the 
cases  was  the  cardinal  point  toward 
which  inquiry  was  directed,  and 
when  ascertained  was  held  to  pre- 
vail. 

When  the  property  is  incapable  of 
delivery  into  the  hand  of  the  pur- 
chaser it  will  come  under  his  control 
and  title  will  pass  to  him  by  delivery 
of  a  bill  of  sale  (Fletcher  v.  Nelson, 
6  N.  D.  94,  69  N.  W.  R.  53;  Cook  v. 
Van  Home,  76  Wis.  520,  44  N.  W.  R. 
767),  although  the  seller  be  put  in 
possession  as  bailee  (White  v.  Mc- 
Cracken,  60  Ark.  613,  31  S.  W.  R.  882); 
and  although  there  be  nothing  done 
symbolical  of  an  intention  to  vest 
the  title  in  the  purchaser,  and  owing 
to  the  ponderous  nature  of  the  arti- 
cles, as  of  brick  in  a  kiln,  or  copper 
in  large  quantity,  it  is  impossible  to 
make  a  manual  delivery,  the  title 
will  pass,  if  such  is  clearly  shown  to 
be  the  intention  of  the  parties.  Tay- 
lor v.  Thurber,  68  111.  App.  114;  Hay- 
den  v.  Demets,  53  N.  Y.  426.  In  this 
latter  case  it  was  said  that  the  title 
passed  without  delivery,  and  if  the 
purchaser  refused  to  accept  the  goods 


and  pay  the  price,  "the  vendor  may, 
after  proper  notice,  sell  the  goods 
and  recover  the  difference  in  price 
from  the  vendee,  or  sue  for  the  dif- 
ference between  the  contract  and 
the  actual  price,  in  which  case  he 
elects  to  retain  the  property  as  his 
own,  or  he  may  recover  the  contract 
price,  in  which  case  he  holds  the  prop- 
erty in  trust  for  the  vendee." 

In  Briggs  v.  United  States,  143  U.  S. 
346,  there  was  a  sale  to  plaintiff,  by 
one  Morehead,  of  "  all  the  cotton  in 
my  two  plantations  in  Mississippi, 
near  Eggs'  Point  and  Greenville. 
Said  cotton  so  sold  embraces  all  that 
I  may  have  baled  and  unbaled, 
gathered  and  ungathered,  .  .  .  sup- 
posed to  be  two  thousand  bales." 
This  cotton  was  seized  and  sold  by 
the  United  States  during  the  war  of 
the  Rebellion.  After  the  war  was  over 
the  action  was  brought  against  the 
United  States  in  the  court  of  claims 
to  recover  the  value  of  the  cotton  so 
seized.  Mr.  Justice  Field  held  the 
title  to  the  cotton  was  in  the  plaint- 
iff, at  the  time  of  the  seizure,  by  vir- 
tue of  the  bill  of  sale,  and  that  not- 
withstanding the  fact  that  it  cov- 
ered cotton  yet  to  be  raised,  the  title 
to  this  passed  so  soon  as  it  appeared 
above  the  ground. 


400 


CH.  II.]       UNCONDITIONAL    SALE  OF  SPECIFIC   CHATTELS.       [§§  487-8. 

intention,  when  in  dispute,  is  usually  a  question  of  fact  for  the 
jury,  as  will  be  seen  in  a  later  section.1 

|  48?.  Or  though  the  seller  is  yet  to  make  delivery. 

The  title  may  also  pass  at  once,  if  that  appears  to  be  the  inten- 
tion, even  though  the  seller  is  yet  to  make  a  delivery.  Thus, 
it  is  said  by  the  United  States  court  of  appeals:  "  Undoubtedly, 
the  general  rule  is,  that  if  the  seller  obligates  himself  as  a  part 
of  his  contract  to  deliver  the  property  to  the  buyer  at  some  speci- 
fied place,  title  will  not  pass  until  such  delivery; "  but,  quoting 
from  Mr.  Benjamin,  the  court  continues:  "Slight  evidence  is, 
however,  accepted  as  sufficient  to  show  that  title  passes  imme- 
diately on  the  sale,  though  the  seller  is  to  make  a  delivery. 
The  question,  at  last,  is  one  of  intent,  to  be  ascertained  by  a 
consideration  of  all  the  circumstances."2 

|  488.  .  The  fact  that  the  price  is  paid  before  the  deliv- 
ery is  strong  evidence  that  the  title  has  already  passed.  Thus, 
in  a  case3  often  cited,  it  was  said  by  Selden,  J.:  "If  the  pay- 
ment was  to  be  made  on  or  after  delivery,  at  a  particular  place, 
it  might  fairly  be  inferred  that  the  contract  was  executory 
until  such  delivery;  but  where  the  sale  appears  to  be  absolute, 
the  identity  of  the  thing  fixed,  and  the  price  for  it  paid,  I  see 
no  room  for  an  inference  that  the  property  remains  the  seller's 
merely  because  he  has  engaged  to  transport  it  to  a  given  point. 
I  think  in  such  case  the  property  passes  at  the  time  of  the  con- 
tract, and  that  in  carrying  it  the  seller  acts  as  bailee  and  not 
as  owner." 

The  payment  of  the  price  is  not,  however,  indispensable;  for 

1  Post,  %  502.  Hagins  v.  Combs,  102  Ky.  165,  43  S. 

2  In  McElwee  v.  Metropolitan  Lum-  W.  R.  222;  Rail  v.  Little  Falls  Lum- 
ber Co.,  37  U.  S.  App.  266,  69  Fed.  R.  ber  Co.,  47  Minn.  422,  50  N.  W.  R. 
302,  16  C.  C.  A.  232.  471 ;  Morris  v.  Winn,  98  Ga.  482,  25 

3  Terry  v.  Wheeler,  25  N.  Y.  520.  S.  E.  R.  562;  Clinton  Nat.  Bank  v. 
To  like  effect:  Bethel  Steam  Mill  Co.  Studemann,  74  Iowa,  104,  37  N.  W.  R. 
v.  Brown,  57  Me.  9;  Penley  v.  Bessey,  112;  Burcham  v.  Griffeth,  31  Neb.  778, 
87  Me.  530,  33  Atl.  R.  21;  Lynch  v.  48  N.  W.  R.  824, 

Daggett,  62  Ark.  592,  37  S.  W.  R.  227; 

20  401 


§§  489-491.]  LAW   OF   SALE.  [book   II. 

if  such  appears  to  be  the  intention,  the  title  will  pass  without 
either  payment  or  present  delivery.1 

§  489.  Or  though  seller  is  to  do  some  other  act  he- 
fore  delivery. —  So,  to  state  affirmatively  what  is  hereafter 
stated  negatively,2  the  title  to  a  specific  chattel  may  pass  at 
once,  if  that  appears  to  have  been  the  intention  of  the  parties, 
even  though  the  seller  has  yet  to  do  something  to  the  goods  to 
put  them  into  the  form  or  condition  in  which  they  are  to  be 
delivered. 

.  "  And  even  if  something  is  to  be  done  by  the  vendor,  but 
only  when  directed  by  the  vendee,  and  for  his  convenience, 
as,  for  instance,  to  load  the  goods  upon  a  vessel  for  transporta- 
tion, the  property  may  pass  by  the  contract  of  sale  notwith- 
standing."3 

§490.  Or  though  seller  is  to  do  something  to  the 

goods  after  delivery. —  So,  clearly,  the  title  to  a  specific  chat- 
tel may  pass  at  once,  even  though  the  seller  is  bound  to  do 
something  in  reference  to  the  goods  after  their  delivery,4  as  to 
repair  or  regulate  a  wTatch  sold,  or  put  in  operation  an  engine 
sold,5  and  the  like.  The  question  is  one  of  intention  as  in 
other  cases ;  but  the  title  may  pass  at  once,  leaving  to  the  pur- 
chaser, perhaps,  the  right  to  rescind  the  contract  if  the  act 
agreed  upon  is  not  performed,  or  to  retain  the  title  and  pos- 
session and  maintain  an  action  for  the  breach  of  the  agree- 
ment.6 

§  491.  Or  though  goods  are  in  hands  of  seller's  bailee 

or  agent.— The  fact  that  the  goods,  at  the  time  of  the  sale, 
are  in  the  possession  of  a  bailee  or  agent  of  the  seller,  will  not 

1  Thayer  v.  Davis,  75  Wis.  205,  43  *  See  Hammond  v.  Anderson,  1  Bos. 
N.  W.  R.  902.  &  Pul.  N.  R  69. 

2  See  post,  §§  507-514,  where  the  5  Mt.  Hope  Iron  Co.  v.    Buffinton, 
subject  is  more  fully  considered.  103  Mass.  62. 

3  Per  Cooley,  J.,  in  Lingham  v.  Eg-  6  Mt.  Hope  Iron  Co.  v.  Buffinton, 
gleston,  27  Mich.  324,  citing  Whit-  supra. 

comb  v.  Whitney,  24  Mich.  486;  Terry 
v.  Wheeler,  25  N.  Y.  520. 

402 


•CH.  II.]  UNCONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  492. 

deprive  the  transaction  of  its  character  as  a  completed  sale,  if 
that  result  seems  to  have  been  intended  by  the  parties.  As 
was  said  by  the  court1  in  Missouri,  "  In  the  sale  of  personal 
property,  in  order  to  pass  the  title  to  the  vendee,  it  is  not  nec- 
essary that  the  vendor  should  be  in  the  possession.  The  sale 
may  be  entirely  good  although  the  goods  are  in  the  possession 
of  a  third  party.2  When  the  goods  are  in  the  possession  of  a 
bailee  or  agent  of  the  seller,  a  completed  or  absolute  sale  con- 
fers an  immediate  and  valid  title  to  the  purchaser  without  any 
formal  delivery  of  the  possession;  the  possession  of  the  bailee 
or  agent  then  becomes  that  of  the  purchaser,  and  operates  not 
merely  as  a  transfer  of  a  right  in  action,  but  of  the  goods 
themselves." 3  The  utmost  that  can  be  requisite,  as  between  the 
parties,  is  that  the  vendor  shall  deliver  to  the  vendee  such  evi- 
dence, authority  or  token  as  may  be  necessary  to  show  the 
latter's  right  to  receive  possession.4 

§  492.  Or  though  goods  remain  in  hands  of  seller  as 

bailee  for  buyer.— Where  the  goods  have  been  ascertained 
and  the  terms  of  the  sale  are  agreed  upon,  the  title  will  pass 
as  between  the  parties,5  unless  a  contrary  intention  appears, 

i  In  Erwin  v.  Arthur,  61  Mo.  386.  vendor's  bailee  to  deliver  the  goods 

2  Citing  Ben j.  on  Sales  (3d  Am.  ed.),  sold  to  such  purchaser  or  agent, 
^  6,  note  a.  there  is  a  constructive  delivery  of 

3  To  same  effect.  Williams  v.  Gray,  the  property;  and  the  delivery  of  the 
39  Mo.  201 ;  Harding  v.  Manard,  55  order  vests  the  purchaser  with  the  in- 
Mo.  App.  364;  Allgear  v.  Walsh,  24  dvAa  of  ownership,  and  has  the  same 
Mo.  App.  134.  effect  in  transferring  the  title  to  the 

«  Where  the  goods  are  in  the  pos-  property  as  the  delivery  of  the  prop- 
session  of  a  bailee  of  the  vendor,  a  erty."  Union  Stock  Yard  Co.  v. 
bill  of  sale  by  the  vendor  gives  an  Mallory,  157  111.  554,  41  N.  E.  R.  888, 
immediate  and  valid  title  to  the  pur-  43  id.  979,  48  Am.  St,  R.  341  [citing 
chaser  without  a  formal  delivery  of  McCormick  v.  Hadden,  37  111.  370; 
the  possession.  Williams  v.  Gray,  Burton  v.  Curyea,  40  111.  320.  89  Am. 
supra  [citing  Heine  v.  Anderson,  Dec.  350;  Webster  v.  Granger,  78  111. 
2  Duer.  318:  Wood  v.  Tassell,  6  Ad.  &  230:  Tuxworth  v.  Moore,  9  Pick.  347, 
El.  (N.  S.)  234;  Sigerson  v.  Harker,  20  Am.  Dec.  479;  Carter  v.  Willard, 
15  Mo.  101].  19  Pick.  1].     See  also  Hatch  v.  Bay- 

'•  When  the  vendor  delivers  to  the  ley,    12   Cush.   (Mass.)  27;  Gibson  v. 

purchaser,  or  to  the  purchaser's  au-  Stevens,  49  U.  S.  (8  How.)  384. 
thorized  agent,  an  order  upon  the        5  As  to  the  effect  upon  the  rights  of 

403 


R  492.1  LAW    0F    SALE.  [BOOK    II. 

even  though  the  goods  are  to  remain,  for  some  purpose,  in  the 
hands  of  the  seller  as  bailee  of  the  buyer.     Thus,  for  example, 
where  there  was  a  sale  of  all  the  lambs  which  the  seller  had  in 
his  flock  at  a  given  price  per  head,  and  it  was  further  agreed 
that  the  seller  should  keep  the  lambs  at  pasture  until  the  buyer 
should  call  for  them,  it  was  held  that  the  title  passed  at  once 
and  the  risk  of  the  lambs  was  imposed  upon  the  buyer,  even 
though  they  had  not  been  separated  from  the  other  sheep  and 
had  not  been  paid  for.     Said  the  court:  "  The  case  is  entirely 
unlike  the  sale  of  certain  articles  out  of  a  large  number.    Here 
the  sale  was  of  all  the  spring  lambs  owned  by  the  appellee. 
There  was  no  setting  apart  to  be  done.     There  was  no  act  of 
separation  to  be  performed.     There  was  no  necessity  for  any 
counting,  or  weighing,  or  for  any  similar  acts.     The  fact  that 
the  appellee  was  to  retain  possession  of  and  pasture  the  lambs 
did  not  change  the  character  of  the  transaction.    It  was  none 
the  less  a  sale  because  the  seller  agreed  to  care  for  the  property. 
It  was  just  as  competent  for  the  parties  to  agree  that  the  seller 
should  hold  possession  as  bailee  as  for  them  to  agree  that  any- 
body else  might  do  so." 1 

Many  similar  cases  are  cited  in  the  notes.2 

creditors  and  subsequent  purchasers  Hall,   4  Ind.  189);  and  when  there 

of  leaving  the  goods  in  the  possession  was  a  sale  of  lambs  to  remain  with 

of  the  seller,  sse  post,  §§  962,  979.  the     seller    until    required    by    the 

1  Elliott,  C.  J.,  in  Bertelson  v.  vendee  (Bertelson  v.  Bower,  81  Ind. 
Bower,  81  Ind.  512  [citing  Henline  512),  it  was  held  the  title  to  the  prop- 
v.  Hall,  4  Ind.  189;  Cloud  v.  Moor-  erty  passed  to  the  vendee,  notwith- 
man,  18  Ind.  40;  Scott  v.  King,  12  standing  its  remaining  in  the  pos- 
Incl  203;  Marble  v.  Moore,  102  Mass.  session  of  the  vendor.  Barrow  v. 
443].  To  same  effect,  Robertson  v.  Window,  71  111.  214.  So  also  in  an 
Hunt,  77  Tex.  321.  14  S.  W.  R.  68;  early  Kentucky  case  (Willis  v.  Willis' 
White  v.  McCracken,  60  Ark.  613,  31  Adm'r,  6  Dana,  48),  where  there  was 
S.  W.  R.  882;  Barrow  v.  Window,  71  an  exchange  of  slaves,  but  owing  to 
I1L  214.  See  also  Cady  v.  Zimmer-  their  youth  the  possession  was  not 
man,  20  Mont.  225,  50  Pac.  R.  553.  changed,  it  was  held  that  neverthe- 

2  Thus,  where  there  was  a  sale  of  less  the  property  passed,  and  they 
a  particular  colt,  and  a  stipulation  were  at  the  risk  of  their  respective 
that  it  should  remain  with  its  mother  bargainees.  Likewise,  where  hay  was 
until  weaned  (Sweeney  v.  Owsley,  sold  by  letter,  the  amount  by  weight 
14    B.   Mon.    (Ky.)   332;    Henline   v.  being  unknown,  but  all  that  was  in 

404 


€IT.  II.]  UNCONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  493. 


§493.  Title  may  pass  though  price  not  yet  paid. —  It  is 

not  at  all  essential  to  the  transfer  of  the  title  that  the  price 
shall  have  been  paid.     The  title,  as  has  been  seen,  passes  as 


a  particular  place  was  conveyed,  it . 
was  held  a  good  sale  without  deliv- 
ery, imposing  the  risks  of  loss  on  the 
bargainee.  Phillips  v.  Moor,  71  Me. 
78.  To  the  same  effect  is  the  case  of 
"Wing  v.  Clark,  24  Me.  366,  where 
there  was  a  sale  of  a  machine  which 
the  vendee  sent  his  agent  for,  with  a 
team,  but  the  agent,  fearing  it  was 
too  bulky  after  getting  it  on  his  ve- 
hicle, left  it  with  the  vendor,  and  it 
was  the  same  night  accidentally  de- 
stroyed by  fire.  It  was  held  that  the 
title  had  passed,  and  that  the  vendee 
must  bear  the  loss.  So  also  in  Roth- 
well  v.  Alves,  60  111.  App.  156,  there 
was  a  sale  of  a  buggy,  the  price  being 
paid,  but  owing  to  the  muddy  condi- 
tion of  the  road  the  purchaser  did 
not  wish  to  take  it  away,  and  the 
seller,  to  accommodate  him,  permit- 
ted it  to  remain  at  the  shop.  The 
court  held  the  title  passed,  and  that 
a  subsequent  purchaser  under  a  bill 
of  sale' generally,  describing  all  the 
property  at  the  shop,  took  no  title  to 
the  carriage. 

In  Penley  v.  Bessey,  87  Me.  530,  33 
Atl.  R.  21,  plaintiff's  agent  bought  a 
pair  of  oxen  of  defendant,  s  iw  them 
and  paid  for  them.  Defendant  agreed 
to  bring  them  to  plaintiff  on  a  later 
date.  Subsequently,  but  before  de- 
livery of  the  cattle,  one  of  them, 
without  defendant's  fault,  died,  and 
the  action  was  brought  to  recover 
his  value.  It  was  held  that  the  title 
had  passed  and  the  verdict  for  the 
plaintiff  was  set  aside. 

In  Clinton  Nat.  Bank  v.  Studemann, 
74  Iowa,  104.  37  N.  W.  R.  112,  cattle 
were  bought,  paid  for  and  delivered 
to  the  vendee,  who  then  redelivered 

40 


them  to  the  vendor  to  be  cared  for 
by  him  and  driven  to  market.  Be- 
fore they  were  so  driven  they  were 
levied  upon  by  the  sheriff,  with  full 
notice  of  the  sale,  as  the  property  of 
the  vendor.  It  was  held  the  levy  was 
invalid;  that  the  property  in  the  cat- 
tle had  passed  to  the  vendee. 

Likewise  it  is  held  that  the  pur- 
chaser must  bear  the  loss  occasioned 
by  a  destruction  of  property  which 
is  the  subject  of  sale  while  in  transit 
from  the  seller  to  the  purchaser. 
This  is  upon  the  theory  that  the 
title  passes  on  delivery  of  the  prop- 
erty to  the  carrier,  this  being  the 
last  act  within  the  vendor's  con- 
trol. Farmers'  Phosphate  Co.  v.  Gill, 
69  Md.  537,  16  Atl.  R.  214,  1  L.  R,  A. 
767:  Mee  v.  McXider,  109  N.  Y.  500, 
17  N.  E.  R.  424;  Lord  v.  Edwards,  148 
Mass.  476,  20  N.  E.  R.  161. 

In  Bates  v.  Elmer  Glass  Mfg.  Co., 
—  N.  J.  Eq.  — ,  14  Atl.  R.  273,  a  cor- 
poration had  received  and  accepted 
an  order  and  payment  for  certain 
glass.  Before  it  was  delivered  the 
concern  went  into  the  hands  of  a  re 
ceiver.  It  was  held  that  the  contract 
was  complete,  and  the  court  ordered 
the  receiver  to  deliver  the  goods.  So 
also  where  plaintiff  ordered  butter 
from  defendant,  who  selected  and 
set  apart  the  amount  required  from 
a  larger  quantity,  afterward  sending 
a  bill  of  account  for  the  same  to  the 
plaintiff,  it  was  held  that  the  sale  of 
the  butter  was  complete  and  that 
title  passed.  Mitchell  v.  Le  Clair, 
165  Mass.  308,  43  N.  E.  R.  117.  So 
plaintiff  purchased  cattle,  taking 
them  in  payment  of  a  debt,  but.  not 
wishing  to  remove  them,  left  them 


493.] 


LAW   OF    SALE. 


[BOOK   II. 


the  result  of  the  agreement  of  the  parties.  As  stated  by  the 
supreme  court  of  Minnesota,1  "  The  rule  is  that  when  the  chat- 
tels are  clearly  designated  and  appropriated  to  the  contract,. 


in  care  of  the  vendor  until  autumn. 
Meanwhile  they  were  levied  upon  as 
property  of  the  vendor,  and  in  a  con- 
test between  the  officer  and  the 
vendee  seeking  to  recover  the  value 
of  the  cattle,  it  was  held  that  the 
vendee  could  recover,  as  he  was  the 
owner  of  the  cattle  at  the  time  of  the 
levy.  Kennedy  v.  Whittie,  27  Nova 
Scotia,  460. 

In  Benedict  &  Burnham  Mfg.  Co. 
v.  Jones,  64  Mo.  App.  218,  defendant's 
assignor  had  purchased  wire  of 
plaintiffs,  but  becoming  financially 
embarrassed  offered  to  return  what 
lie  had  bought  less  a  very  little  that 
had  been  sold.  Plaintiffs  accepted 
this  offer  and  requested  prepayment 
of  freight,  and  payment  for  that  part 
of  the  wire  which  had  been  used.  Al- 
though defendant's  assignor  was  in 
possession  of  the  goods,  in  such  a 
condition  as  to  be  easily  distinguished 
from  the  balance  of  his  stock,  he  neg- 
lected to  make  the  shipment,  hence 
the  action  of  replevin  was  brought 
for  the  wire  against  the  assignee. 
The  court  held  that  although  the 
wire  was  mixed  with  other  stock  of 
the  assignor,  nevertheless,  as  it  re- 
mained in  original  packages  and  bore 
the  shipping  tags  of  plaintiffs,  it  was 
so  clearly  distinguishable  from  the 
residue  of  assignor's  stock  that  the 
title  passed  to  plaintiffs  by  means  of 
the  previous  correspondence  concern- 
ing its  shipment.  So  in  Montgomery 
Furniture  Co.  v.  Hardaway,  104  Ala. 
100,.  where  there  was  a  sale  of  horses 
to  the  agent  of  the  furniture  com- 


pany, but  the  animals  were  to  remain 
in  the  care  of  the  vendor  for  some 
little  time  before  payment  was  to  be 
made  or  the  horses  delivered,  it  was 
held  that  the  title  passed  without  de- 
livery, the  price  having  been  fixed 
and  the  property  being  identified.  So- 
it  was  held  where  hogs  were  sold 
while  out  of  the  possession  of  both 
vendor  and  vendee,  being  on  the  cars 
in  transit  to  a  market,  and  it  was 
agreed  that  the  consignee  should  ac- 
count to  the  vendee  for  the  price,  and 
he  did  so  account,  that  the  contract 
of  sale  was  complete;  that  the  title 
passed,  and  the  vendee  was  liable 
for  the  contract  price.  Harding  v. 
Manard,  55  Mo.  App.  364. 

In  Sutherland  v.  Bruce,  73  Fed.  R. 
624,  there  was  an  agreement  to  trade 
horses.  In  pursuance  of  this  con- 
tract one  of  the  parties  delivered  his 
horse,  but  the  other  refused  to  fulfill 
his  bargain.  Held,tha,t  replevin  would 
lie  on  behalf  of  the  bargainor  who 
had  delivered  his  horse  for  the  ani- 
mal for  which  he  traded:  that  the 
title  had  passed  and  with  it  the  right 
of  possession.  Likewise  where  there 
was  a  contract  concerning  some  hogs 
which  were  identified  by  the  parties, 
and  in  part  paid  for,  it  was  held  that 
notwithstanding  the  fact  that  the 
swine  were  left  with  the  vendor,  the 
contract  was  a  sale,  the  title  passed, 
and  the  vendee  could  compel  a  de- 
livery. O'Farrell  v.  McClure,  —  Kan. 
App.  — ,  47  Pac.  R.  160.  So  in  Lynch 
v.  Daggett,  62  Ark.  592,  37  S  W.  R. 
227,  there  was  a  contract  concern- 


i  Rail  v.  Little  Falls  Lumber  Co.,  47  Minn.  422,  50  N.  W.  R.  471,  citing. 
Hatch  v.  Oil  Co.,  100  U.  S.  124. 

406 


OH.  II.]  UNCONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  493. 


are  ready  for  immediate  delivery,  and  the  terms  of  sale,  in- 
cluding the  price,  are  explicitly  given,  there  is  an  executed 
contract,  and  the  title  to  the  property,  as  between  the  parties, 


ing  some  wagon  tongues  and  other 
lumber  in  a  pile  on  the  premises  of 
the  vendor.  It  was  agreed  that 
vendor  should  draw  this  material  to 
the  railway  for  the  vendee,  and  was 
to  receive  a  fixed  pa-ice  for  the  pile. 
The  court  held  that  the  title  passed 
by  the  force  of  the  contract,  the  de- 
livery not  being  made  in  no  way 
affecting  the  title.  So,  when  there 
was  a  sale  of  logs,  an  unknown  quan- 
tity in  feet,  but  identified  and 
branded  by  the  purchaser,  it  was 
held  that  the  title  passed,  although 
there  was  no  manual  delivery  of  the 
property.  Hagins  v.  Combs,  102  Ky. 
165,  43  S.  W.  R  222. 

In  Thayer  v.  Davis,  75  Wis.  205,  43 
N.  W.  Ff.  902.  there  was  a  sale  of  a 
definite  number  of  piles  of  lumber,  at 
a  fixed  price  per  thousand  feet.  As 
the  property  was  yet  undelivered  it 
was  coutended  that  the  title  did  not 
pass;  but  the  court  held  that  this  was 
immaterial;  that  from  the  fact  that 
the  agent  of  the  vendee  counted  the 
piles  and  courses  in  the  pile  and  gave 
orders  for  their  disposition,  an  inten- 
tion to  pass  the  title  was  shown,  and 
this  intention  prevailed. 

In  Gatzmer  v.  Moyer  (Pa.  St.),  13 
Atl.  R.  540.  there  was  a  sale  of  all  the 
standing  and  fallen  timber  on  a  cer- 
tain tract  at  a  fixed  price  per  thou- 
sand feet  sawed:  the  vendee  was  to  do, 
the  sawing.  After  the  logs  had  been 
gotten  out  they  were  levied  upon  as 
the  property  of  the  vendee,  and  it  was 
held  that  the  title  passed  to  him  by 
virtue  of  the  contract  of  sale,  and  the 
fact  that  the  timber  had  not  yet  been 
measured  was  immaterial.  Likewise 
where  colts  were  sold  to  be  subse- 


quently delivered,  it  was  held  the 
title  passed  and  a  levy  upon  them  as 
property  of  the  vendor  was  void. 
Kneeland  v.  Renner,  2  Kan.  App.  451, 
43  Pac.  R  95. 

In  Burcham  v.  Griff eth,  31  Neb. 
778,  48  N.  W.  R.  824,  there  was  a  sale 
of  cattle,  the  price  being  paid,  to  be 
delivered  at  a  future  date.  While 
driving  them  to  the  place  of  delivery 
several  were  injured  without  fault 
of  the  vendor.  Held,  the  title  had 
passed  and  that  the  loss  was  on  the 
vendee. 

When  liquors  were  being  pur- 
chased, from  week  to  week,  of  a  bot- 
tler, by  a  hotel  keeper  in  another 
city,  and  the  practice  was,  upon  re- 
ceiving orders  for  the  liquor,  to  set  it 
aside  for  the  purchaser  and  charge 
its  price  to  him,  delivery  being  made 
either  by  shipment  by  rail  or  by  the 
seller's  wagon,  and  the  seller,  who  had 
no  license  to  sell  liquor  in  the  county 
of  the  purchaser's  domicile,  was  in- 
dicted for  selling  liquor  there  with- 
out a  license,  the  question  was,  When 
was  the  contract  of  sale  complete  ? 
When  did  the  title  pass  to  the  pur- 
chaser? If  it  passed  only  upon  de- 
livery the  law  was  violated.  The 
court  said  there  was  no  violation; 
that  the  sale  was  complete  in  the 
county  of  the  seller's  domicile,  and 
that  the  title  there  passed  to  the 
purchaser.  Com.  v.  Hess,  148  Pa.  St. 
98,  23  Atl.  R.  977. 

On  the  other  hand,  where  it  is  the 
evident  intention  of  the  parties  that 
title  is  not  to  pass  until  delivery,  as 
where  charcoal  is  to  be  paid  for  on 
delivery  at  a  particular  point,  the 
title  will  not  pass  until  the  terms  of 


407 


§  494.] 


LA.W   OF    SALE. 


[BOOK    II. 


passes  to  the  purchaser,  even  without  actual  payment  or  de- 
livery." ' 


§494. 


The  payment  of  the  price  may,  however,  be 


made  either  expressly  or  impliedly  a  condition  precedent  to 
the  passage  of  the  title;  and  when  such  is  the  case,  the  COndi- 


the  contract  are  complied  with.  (See 
next  chapter.)  Diehl  v.  McCormick, 
143  Pa.  St.  584.  22  Atl.  R.  1033.  Or 
when  the  contract  does  not  clearly 
evidence  an  intention  to  pass  the 
title,  as  where  one  told  another  he 
might  take  a  certain  mule  in  pay- 
ment of  a  debt,  and  the  other  said  he 
would,  but  there  was  no  further  act 
showing  passage  of  title,  it  was  held 
to  be  no  sale  of  the  property.  Weedon 
v.  Clark,  94  Ala.  505,  10  S.  R.  307. 
Likewise  where  there  was  a  contract 
for  the  sale  and  purchase  of  a  full 
boatload  of  coal  slack,  it  was  held 
that  the  title  to  the  property  did  not 
pass  as  fast  as  the  boat  was  loaded,  for 
until  fully  loaded  the  contract  was  ex- 
ecutory. It  was  the  intention  of  the 
parties  that  the  property  should  all 
be  in  the  boat  before  the  title  passed. 
Hays  v.  Pittsburgh,  etc.  Packet  Co., 
33  Fed.  R.  552. 

However  when  the  property  which 
is  the  subject  of  the  contract  of  sale 
is  on  realty  owned  by  the  vendee 
and  in  place  where  it  will  be  used,  as 
mining  machinery  at  the  head  of  a 
mine,  the  title  will  pass  without  de- 
livery. Hall  v.  Morrison,  92  Ga.  311, 
18  S.  E.  R.  293.  Or,  as  in  the  case  of 
lumber  yet  to  be  sawed  from  logs  and 
piled  on  sticks  in  vendor's  yard,  the 
title  will  pass  to  the  vendee  when 
the  lumber  is  so  piled,  and  he  will  be 
entitled  to  its  possession.  Martz  v. 
Putnam,  117  Ind.  392,  20  N.  E.  R.  270. 

1  In  Hayden  v.  Demets,  53  N.  Y. 
426,  it  is  said:  "Upon  a  valid  sale  of 


specific  chattels,  when  nothing  re- 
mains to  be  done  by  the  vendor  ex- 
cept delivery,  whether  conditioned 
upon  payment  or  not,  the  right  of 
property  passes  to  the  vendee,  at 
whose  risk  it  is  retained  by  the 
vendor."  In  Clark  v.  Greeley.  02 
N.  H.  394,  it  is  said:  "As  a  general 
rule,  under  a  contract  of  sale  of  spe- 
cific chattels  at  a  stipulated  price, 
when  nothing  remains  to  be  done 
to  designate  the  property  sold  or  the 
price  to  be  paid,  the  title,  independ- 
ently of  the  statute  of  frauds,  imme 
diately  vests  in  the  buyer  and  a  right 
to  the  price  in  the  seller,  unless  it 
can  be  shown  that  such  was  not  the 
intention  of  the  parties.  Clark  v. 
Draper,  19  N.  H.  419,  421;  Bailey  v. 
Smith,  43  N.  H.  141,  143;  Townsend 
v.  Hargraves,  118  Mass.  325,  332: 
Phillips  v.  Moor,  71  Me.  78;  Dixon  v. 
Yates,  5  B.  &  Ad.  313,  340.  Although 
the  title  passes  so  as  to  subject  the 
buyer  to  the  risk  of  future  injury  to 
the  property,  the  right  of  possession 
does  not  pass,  but  is  dependent  upon 
the  payment  of  the  price.  In  the 
absence  of  any  agreement,  payment 
and  delivery  are  to  be  concurrent 
acts,  and  the  seller  has  the  right  to 
retain  the  possession  until  the  price 
is  paid."  In  Olyphant  v.  Baker,  5 
Denio  (N.  Y),  379,  it  is  said  by  Beards- 
ley,  C.  J. :  "  It  is  a  general  rule  of  the 
common  law  that  a  mere  contract 
for  the  sale  of  goods,  where  nothing 
remains  to  be  done  by  the  seller  be- 
fore making  delivery,  transfers  the 


408 


CH.  II.]       UNCONDITIONAL    SALE  OF  SPECIFIC    CHATTELS.       [§§  495-6. 

tion  will  be  operative  unless  its  provisions  are  waived,  as  will 
be  seen  in  the  following  chapter;1  but  in  the  absence  of  such 
a  condition  the  title  passes,  as  already  stated. 

§  4-95.  .  The  passing  of  the  title  must  nevertheless  be 

constantly  distinguished  from  the  delivery  of  the  possession. 
For,  though  the  title  may  have  passed,  it  may  well  be,  as  will 
be  seen  hereafter,2  that  the  vendor,  by  virtue  of  his  vendor's 
lien,  is  entitled  to  retain  possession  of  the  goods  until  the  price 
is  paid.  The  title  to  the  goods,  the  liability  to  pay  for  them, 
and  the  risk  of  their  loss,  may  thus  all  be  in  the  buyer,  while 
the  right  to  the  price  and  to  retain  possession  of  the  goods  to 
secure  its  payment  may  be  in  the  seller.  And  this  being  true, 
it  is  of  course  clear  that  where  all  the  elements  of  an  actual 
sale,  as  distinguished  from  an  executory  agreement,  are  pres- 
ent, there  is  nothing  inconsistent  in  an  express  stipulation  that 
the  seller  shall  retain  possession  until,  and  as  security  for,  the 
payment  of  the  price.3 

§  496.  Or  though  something  remains  to  be  done  to 

ascertain  the  price. — As  will  be  seen  hereafter,4  it  is  well  set- 
tled that  when  something  remains  to  be  done  by  the  seller, 
such  as  counting,  weighing  or  measuring,  which  is  necessary 
in  order  to  identify  the  goods  or  separate  them  from  a  larger 
mass  of  which  they  form  a  part,  the  title  will  not  pass  until 
such  act  is  done,  for  the  reason  that  until  that  act  is  done  the 
goods  are  not  ascertained  or  identified.5  But  where  the  entire 
mass  is  sold,  and  must  be  counted,  weighed  or  measured  sim- 
ply with  a  view  to  the  ascertainment  of  the  price  for  the  pur- 
pose of  a  settlement,  though  this  act  may  be  presumptively  a 

right  of  property,  although  the  price  W.  R.  902;  Sweeney  v.  Owsley,  14  B. 

has  not  been  paid  nor  the  thing  sold  Mon.  (Ky.)  332;  Leonard  v.  Davis,  1 

delivered  to  the  purchaser."'    To  the  Black  (U.  S.).  476. 

same  effect:  Phillips  v.  Moor,  71  Me.  lSoepost,  eh.  III. 

78;  Towne  v.  Davis,  66  N.  H.  396,  22  -Seepoa*.  §  1474. 

Atl.  R.  450;  Bertelsou  v.  Bower,  81  3  Arkansas    Cattle    Co.    v.    Mann 

Ind.  512;  Jenkins  v.  Jarrett,  70  N.  C.  (1888),  130  U.  S.  69. 

255;  Barrow  v.  Window.  71  111.  214;  4  See  post,  §  520. 

Thayer  v.  Davis,  75  Wis.  205,  43  N.  5  See  post,  §  520. 

403 


§§  497,  498.]  law  or  sale.  [book  ii. 

condition  precedent,  as  will  be  seen  hereafter,1  the  weight  of 
authority  is  to  the  effect  that  the  title  may  pass  at  once 
if  such  appears  to  have  been  the  intention  of  the  parties,  al- 
though the  goods  have  not  been  delivered  and  the  act  in  ques- 
tion has  not  been  done.2  The  distinction  is  found  between  a 
specific  commodity  and  an  indefinite  one.3 

g  497.  .  This  distinction  was  forcibly  put  in  a  leading 

case4  as  follows:  "If  the  goods  sold  are  clearly  identified, 
then,  although  it  may  be  necessary  to  number,  weigh  or  meas- 
ure them  in  order  to  ascertain  what  would  be  the  price  of  the 
whole  at  a  rate  agreed  upon  between  the  parties,  the  title 
passes.  If  a  flock  of  sheep  be  sold  at  so  much  a  head,  and  it 
is  agreed  that  they  shall  be  counted  after  the  sale  in  order  to 
determine  the  entire  price  of  the  whole,  the  sale  is  valid  and 
complete.  But  if  a  given  number  out  of  the  whole  are  sold, 
no  title  is  acquired  by  the  purchaser  until  they  are  separated 
and  their  identity  thus  ascertained  and  determined.  The  dis- 
tinction in  all  these  cases  does  not  depend  so  much  upon  what 
is  done  as  upon  the  object  which  is  to  be  effected  by  it.  If 
that  be  specification,  the  property  is  not  changed;  if  it  be 
merely  to  ascertain  the  total  value  at  designated  rates,  the 
change  of  title  is  effected." 

§  498.  .  What  is  thus  true  where  the  act  is  to  be  done 

by  the  seller  is  equally  true  where  it  is  to  be  performed  by  the 
buyer.  Thus,  where  definite  terms  are  agreed  upon  concern- 
ing specific  goods,  the  title  may  pass  at  once,  unless  a  contrary 
intention  appears,  even  though,  as  in  the  case  of  the  sale  of  a 

i  See  post,  §  525.  223:  Kohl  v.  Lindley,  39  111.  195;  Graff 

2  Cleveland  v.   Williams.   29  Tex.  v.  Fitch,  58  111.  373,11  Am.  R.  85; 

204,  94  Am.  Deo.  274;  Crofoot  v.  Ben-  Cook  v.  Van  Home,  76  Wis.  520,  44 

nett,2N.  Y.  258;  Francis-Chenoweth  N.  W.  R.  7G7:  Welch  v.  Spies,  103 

Hardware  Co.  v.  Gray,  104  Ala.  236,  Iowa,  389,  72  N.  W.  R.  548. 

15  S.   R   911;    Greene  v.   Lewis,  85  3  Cunningham  v.  Ashbrook,  20  Mo. 

Ala.  221,  7  Am.  St.  R.  42;  Hagins  v.  553;    Cleveland  v.  Williams,  supra; 

Combs,  102  Ky.  165,43  S.  W.  R.  222;  Crofoot  v.  Bennett,  supra. 

Burke  v.  Shannon  (Ky.),  43  S.  W.  R.  4  Crofoot  v.  Bennett,  2  N.  Y.  258. 

410 


CH. 


II.]  UNCONDITIONAL    SALE   OF    SPECIFIC    CHATTELS.  [§  498. 


stack  of  hay,  the  buyer  is  ye't  to  weigh  or  bale  it.1  In  a  Ken- 
tucky case,2  marked  "  not  to  be  officially  reported,"  the  court 
said :  "  Where  one  purchases  personal  property  of  another,  and 
the  buyer  leaves  it  with  the  seller  until  the  performance  of 


i  Burke  v.  Shannon  (Ky.),  43  S.  W. 
R.  223;  Kohl  v.  Lindley,  39  111.  195; 
Phillips  v.  Moor,  71  Me.  78. 

2  Burke  v.  Shannon,  supra. 

It  is  said  in  Joyce  v.  Adams,  8  N.  Y. 
291 :  "  It  is  a  general  rule  of  law  that 
where  a  contract  is  made  for  the  pur- 
chase of  goods,  and  nothing  is  said 
about  payment  or  delivery,  the  prop- 
erty passes  immediately,  so  as  to  cast 
upon  the  purchaser  all  future  risk,  if 
nothing  further  remains  to  be  done 
to  the  goods,  although  he  cannot  take 
them  away  without  payment  of  the 
price.  But  if  anything  remains  to 
be  done  on  the  part  of  the  seller,  as 
between  him  and  the  buyer,  such  as 
weighing,  measuring  or  counting  out 
of  a  common  parcel  before  the  goods 
purchased  are  to  be  delivered,  until 
that  is  done  the  right  of  property  has 
not  attached  in  the  buyer,  and  the 
future  risk,  of  course,  remains  with 
the  seller."  In  this  case  the  price  was 
undetermined  and  the  contract  did 
not  provide  the  method  of  determin- 
ing it;  so  it  was  held  that  the  risk 
was  with  the  seller.  On  the  other 
hand,  in  the  application  of  a  like  rule 
in  Burke  v.  Shannon  (Ky.),  43  S.  W. 
R.  223,  the  court  held  the  risk  of  loss 
was  in  the  purchaser  when  the  duty 
fell  upon  him  to  ascertain  the  price 
in  a  method  which  the  contract  pro- 
vided. So  also  where  butter  in  fir- 
kins was  sold  at  a  fixed  price  per 
firkin  it  was  held  the  title  had  passed 
without  payment  of  the  price  for 
which  the  buyer  was  liable.  Seckel 
v.  Scott,  66  111.  106. 

Where  the  contract  furnished  a  cri- 


terion for  ascertaining  the  price,  as 
when  on  any  day  the  seller  might 
name  it  should  be  a  certain  amount 
less  than  the  price  of  like  articles  on 
that  day  at  another  city,  it  was  held 
that  the  property  passed  to  the  ven- 
dee upon  delivery  of  the  goods*,  al- 
though the  amount  of  the  price  was 
not  fixed.  McConnell  v.  Hughes.  29 
Wis.  537.  Likewise,  where  a  certain 
barn  of  hay  was  sold  at  a  fixed  price 
per  ton,  the  buyer  to  weigh  the  hay, 
it  was  held  the  title  passed,  ami.  al- 
though the  property  was  destroyed, 
the  buyer  was  liable  for  the  price. 
Phillips  v.  Moor,  71  Me.  78.  So  in 
Francis-Chenoweth  Hardware  Co.  v. 
Gray,  104  Ala.  236, 15  S.  R.  911,  where 
there  was  a  sale  of  a  stock  of  goods 
in  payment  of  a  debt,  the  goods  yet 
to  be  inventoried  and  the  price  thus 
determined  to  be  so  applied  to  the 
payment,  any  discrepancies  to  be 
paid  to  the  party  in  whose  favor  they 
might  exist,  it  was  held  that  the  title 
passed  and  that  the  goods  were  not 
liable  to  seizure  by  the  vendor's 
creditors.  To  the  same  effect  was 
the  case  of  Pacific  Lounge  Co.  v. 
Rudebeck,  15  Wash.  St.  336,  46  Pac. 
R.  392,  in  which  there  was  a  sale  of 
property  in  payment  of  the  vendor's 
debt  to  the  purchaser,  and  it  was 
held  that  the  title  passed  and  that 
the  vendee  might  maintain  replevin 
against  a  lessee  of  the  vendor,  who 
was  in  default  under  the  lease,  for 
the  recovery  of  the  goods.  Likewise, 
when  property  is  sold  and  delivered 
to  the  purchaser  "for  a  reasonable 
price,"  the  title  will  nevertheless  pass 


411 


499.] 


LAW   OF    SALE. 


[book  II. 


subsequent  acts  by  the  buyer,  such  as  weighing,  measuring,  or 
otherwise  ascertaining  the  quantity,  it  is  left  at  the  risk  of  the 
buyer,  unless  there  is  an  express  contract  to  the  contrary;  the 
title  having  passed  immediately  upon  the  trade  being  closed." 

§499.  The  question  is  one  of  intention. —  It  has  been  de- 
cided,1 said  Judge  Cooley  in  one  case,2  "that  the  question 
whether  a  sale  is  completed  or  only  executory  is  usually  one 
to  be  determined  from  the  intent  of  the  parties  as  gathered 
from  their  contract,  the  situation  of  the  thing  sold,  and  the 
circumstances  surrounding  the  sale;  that  where  the  goods  sold 


to  the  purchaser,  notwithstanding 
the  fact  that  the  price  be  undeter- 
mined. Greene  v.  Lewis,  85  Ala.  221, 
4  S.  R.  740,  7  Am.  St.  R.  42;  Phiferv. 
Erwin,  100  N.  C.  59,  6  S.  E.  R.  672. 

In  Sanger  v.  Waterbury,  116  N.  Y. 
371,  22  N.  E.  R.  404,  it  was  held  that 
where  a  certain  number  of  bags  of 
coffee  were  bought  to  be  taken  from 
a  larger  number  of  bags,  but  so 
marked  as  to  be  easily  distinguish- 
able, the  title  passed,  although  the 
coffee  must  needs  be  weighed  for  the 
purpose  of  ascertaining  the  price. 
Likewise,  when  standing  timber  was 
bought  for  the  purpose  of  being  con- 
verted into  wood,  to  be  paid  for  at  so 
much  a  cord,  the  title  passes  to  the 
wood  that  is  cut  and  the  price  of  this 
may  be  recovered  although  it  be  de- 
stroyed by  fire.  Upson  v.  Holmes, 
51  Conn.  500. 

Where  all  the  corn  in  two  cribs 
was  sold  at  so  much  a  bushel,  the 
title  may  pass  at  once,  if  such  ap- 
pears to  be  the  intention,  even  though 
the  seller  has  the  right  to  retain  for 
his  own  use  two  or  three  hundred 
bushels.  Welch  v.  Spies,  103  Iowa, 
389,  72  N.  W.  R.  548. 

1  In  Lingham  v.  Eggleston,  27  Mich. 
324. 

2  Byles  v.  Colier,  54  Mich.  1  [refer- 


ring, for  the  same  conclusion,  to 
Hatch  v.  Fowler,  28  Mich.  205;  Hahn 
v.  Fredericks,  30  Mich.  223, 18  Am.  R. 
119;  Wilkinson  v.  Holiday,  33  Mich. 
386;  Grant  v.  Merchants'  Bank,  35 
Mich.  515;  Scotten  v.  Sutter,  37  Mich. 
526;  Carpenter  v.  Graham,  42  Mich. 
191;  Brewer  v.  Salt  Association,  47 
Mich.  526.  Judge  Cooley  refers  also 
to  Kelsea  v.  Haines,  41  N.  H.  246; 
Southwestern  Freight  Co.  v.  Stan- 
ard,  44  Mo.  71,  100  Am.  Dec.  255; 
Shelton  v.  Franklin,  68  111.  333;  Straus 
v.  Minzesheimer,  78  111.  492;  Crofoot 
v.  Bennett,  2  N.  Y.  258;  Groat  v.  Gile, 
51  N.  Y.  431;  Burrows  v.  Whitaker, 

71  N.  Y.  291,  27  Am.  R.  42;  Dennis  v. 
Alexander,  3  Pa.  St.  50;  Calloway  v. 
Week,  54  Wis.  604;  Cay  wood  v.  Tim- 
mons,  31  Kan.  394].  To  same  effect 
also:  Hood  v.  Bloch,  29  W.  Va.  244, 
11  S.  E.  R.  910;  Wadhams  v.  Balfour, 
32  Oreg.  813,  51  Pac.  R.  642;  Barker 
v.  Freeland,  91.Tenn.  112,  18  S.  W.  R. 
60;  Restad  v.  Engemoen,  65  Minn. 
148,  67  N.  W.  R  1146;  Wagar  v. 
Detroit,  etc.  R.  Co.,  79  Mich.  648,  44 
N.  W.  R.  1113;  Day  v.  Gravel  (1898), 

72  Minn.  159,  75  N.  W.  R.  1 ;  Boswell 
v.  Green,  25  N.  J.  L.  390;  Pacific 
Lounge  Co.  v.  Rudebeck,  15  Wash. 
336,  46  Pac.  R.  392. 


412 


CH.  II.]  UNCONDITIONAL    SALE   OF    SPECIFIC    CHATTELS.  [§  499. 

are  designated,  so  that  no  question  can  arise  as  to  the  thing  in- 
tended, it  is  not  absolutely  essential  that  there  should  be  a 
delivery,  or  that  the  goods  should  be  in  a  deliverable  condition, 
or  that  the  quantity  or  quality,  when  the  price  depends  upon 
either,  should  be  determined;  these  being  circumstances  indi- 
cating intent,  but  not  conclusive;  but  that  where  anything  is 
to  be  done  by  the  vendor,  or  by  the  mutual  concurrence  of  both 
parties,  for  the  purpose  of  ascertaining  the  price  of  the  goods, 
as  by  weighing,  testing  or  measuring  them,  where  the  price  is 
to  depend  upon  the  quantity  or  quality  of  the  goods,  the  per- 
formance of  these  things,  in  the  absence  of  anything  indicating 
a  contrary  intent,  is  to  be  deemed  presumptively  a  condition 
precedent  to  the  transfer  of  the  property,  although  the  indi- 
vidual goods  be  ascertained,  and  they  appear  to  be  in  a  state 
in  which  they  may  be  and  ought  to  be  accepted." 

Many  other  cases,  some  of  which  are  referred  to  in  the  note, 
show  how  fully  the  question  is  one  of  the  intention  of  the  par- 
ties.1 


1  In  Towne  v.  Davis,  66  N.  H.  396, 
22  Atl.  R.  450,  the  question  was 
whether  the  title  had  passed  to  a 
quantity  of  hay  sold  at  auction. 
"This,"  said  the  court,  "is a  question 
of  the  intention  and  understanding 
of  the  parties,  which  is  a  question  of 
fact.  A  referee  has  found  that  the 
title  did  not  pass,  and  the  verdict 
must  stand  if  there  was  evidence 
competent  to  sustain  it. 

"  As  between  the  parties,  neither 
delivery  nor  payment  is  necessary  to 
a  completed  sale  except  when  re- 
quired by  the  statute  of  frauds. 
Clark  v.  Draper,  19  N.  H.  419,  421; 
Bailey  v.  Smith,  43  N.  H.  141,  143; 
Clark  v.  Greeley,  62  N.  H.  394.  At 
the  common  law  an  agreement  for 
the  present  sale  of  specific  chattels 
casts  on  the  buyer  the  risk  of  loss. 
But  if  anything  remains  to  be  done 
between  the  parties  to  identify  the 


goods  sold,  or  to  determine  the  price 
to  be  paid,  the  sale  is  not  complete 
so  as  to  pass  the  title,  unless  it  may 
be  inferred  from  the  evidence  that 
the  parties  intended  the  title  should 
pass  at  once.  If  the  goods  are  sold 
by  number,  weight,  measure,  or  the 
like,  the  sale  is  prima  facie  not  com- 
plete till  the  quantity  is  ascertained, 
and  if  they  are  mixed  with  others, 
not  until  they  are  separated  and  des- 
ignated. Warren  v.  Buckminster,  24 
N.  H.  336;  Fuller  v.  Bean,  34  N.  H. 
290;  Ockington  v.  Richey,  41  N.  H. 
275;  Prescott  v.  Locke,  51  N.  H.  94. 

"  The  general  doctrine  on  this  sub- 
ject is,  that  when  something  remains 
to  be  done  in  relation  to  the  articles 
which  are  the  subject  of  the  sale,  as 
that  of  weighing  or  measuring,  and 
there  is  no  evidence  tending  to 
show  an  intention  of  the  parties  to 
make  an  absolute  and  complete  sale, 


413 


§  500.] 


LA.W   OF    SALE. 


[UOOK    II. 


§  500.  Rules  for  determining  the  intention.— In  order  to 
aid  in  ascertaining  the  intention  in  doubtful  cases,  certain  rules 
have  been  formulated,  based  upon  the  presumed  iutention  of 


the  performance  of  such  act  is  a  pre- 
requisite to  the  consummation  of 
the  contract;  and  until  it  is  per- 
formed the  property  does  not  pass  to 
the  vendee.  But  in  the  case  of  sales 
where  the  property  to  be  sold  is  in  a 
state  ready  for  delivery,  and  the  pay- 
ment of  money  or  giving  security 
therefor  is  not  a  condition  precedent 
to  the  transfer,  it  may  well  be  the 
understanding  of  the  parties  that  the 
s  de  is  perfected  and  the  interest 
passes  immediately  to  the  vendee, 
although  the  weight  or  measure  ,of 
the  articles  sold  remains  yet  to  be 
ascertained.  Such  a  case  presents  a 
question  of  the  intention  of  the  par- 
ties to  the  contract.  The  party  af- 
firming the  sale  must  satisfy  the  jury 
that  it  was  intended  to  be  an  abso- 
lute transfer,  and  all  that  remained 
to  be  done  was  merely  for  the  pur- 
pose of  ascertaining  the  price  of  the 
articles  sold  at  the  rate  agreed  upon. 
Riddle  v.  Varnum,  20  Pick.  (Mass.) 
280,  283,  284. 

"  The  terms  of  the  sale  were  '  cash, 
or  a  bankable  note,'  and  this  fact  is 
to  be  considered  in  determining 
whether  the  parties  intended  a  com- 
pleted sale.  If  by  the  use  of  these 
terms  the  parties  understood  merely 
that  no  credit  was  to  be  given,  and 
that  the  seller  would  insist  on  his 
right  to  retain  possession  of  the  hay 
until  the  price  was  paid  or  secured, 
the  sale  might  still  be  so  far  com- 
pleted and  absolute  that  the  prop- 
erty would  pass;  but  if  it  was  the 
understanding  that  the  hay  was  to 
remain  the  property  of  the  seller 
until  the  price  was  paid  or  secured, 
the  sale  was  conditional,  and    the 


title  would  not  pass,  even  on  deliv- 
ery, without  performance  of  the  con- 
dition. Clark  v.  Greeley,  62  N.  H. 
394,  396. 

"  In  Paul  v.  Reed,  52  N.  H.  136.  the 
buyer,  moving  into  the  seller's  house, 
examined  and  selected  a  hog,  some 
butter,  sugar,  tea  and  other  articles, 
and  agreed  to  take  them  at  certain 
prices.     He   mixed   the   sugar  with 
his  own,  changed  the  hog  to  another 
pen,  and  took  out  his  pocket-book  to 
pay  for  them;  but  at  that  moment 
the  money  clue  for  the  price  was  at- 
tached  by  a  creditor  of  the  seller, 
and  the  seller  took  back  his  goods. 
The  question  was  whether  the  title 
was  vested  in  the  purchaser.     The 
court  say:    'The  question     then   is 
whether  the  delivery  here  was  abso- 
lute, intending  to  pass  the  title  to  the 
vendee  and  trust  him  for  the  price, 
or  whether  it  was  made  with  the  ex- 
pectation that  the  cash  would   be 
paid  immediately  on  delivery.     This 
is  a  question  of  fact,  but  it  is  sub- 
mitted to  the  court  for  decision.    Or- 
dinarily it  should  be  passed  upon  at 
the  trial  term.'    .    .     .     Assuming 
that  the  questions  both  of  law  and 
fact  were  reserved,  the  court  found 
that  the  goods  were  sold  for  cash, 
and  of  course  that  the  delivery  of  the 
goods  and  the  payment  of  the  price 
were  to  be  simultaneous;  and  that 
when  a  part  had  been  delivered,  and 
the  seller  was  figuring  up  the  amount 
and   the  buyer  had  taken   out   his 
money  to  pay  the  price,  the  act  was 
arrested  by  the  service  of  process, 
the  sale  was  not  completed,  and  the 
title  had  not  vested  in  the  buyer." 


414 


CH.  II.]  UNCONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  501. 

the  parties  in  such  cases,  which  will  often  be  of  service  in  mak- 
ing the  issues  clear,  or  will  turn  the  scales  where  they  would 
otherwise  be  balanced. 

Many  cases,  of  course,  need  no  such  aid ;  for  the  parties  have 
themselves  made  their  intention  plain.  In  many  cases,  also, 
the  parties  have  expressly  interposed  conditions  in  the  way  of 
the  transfer  of  the  title, —  and  these  will  be  considered  in  the 
following  chapter;  but  the  rules  in  question  are  not  designed 
to  apply  to  cases  of  that  nature.  They  are  designed  to  aid  in 
answering  this  question:  Where  the  parties  have  bargained 
concerning  specific  chattels,  but  have  not  by  their  contract  im- 
posed express  conditions,  or  otherwise  made  their  intention 
clear,  when  will  the  title  pass  ? 

The  rules,  moreover,  it  must  be  understood,  are  not  fixed 
principles  of  law,  but  simply  presumptions  as  to  intention,  to  be 
applied  where  the  intention  of  the  parties  is  not  already  clear. 
They  must,  therefore,  like  similar  rules  which  govern  in  the 
construction  of  wills,  be  applied  constantly  subject  to  this  pro- 
viso:— "unless  a  contrary  intention  appears." 

§  501.  .  These  rules  have  been  stated  in  many  forms, 

but,  in  substance,  including  the  proviso,  they  are: 

1.  "Where  the  terms  Of  the  contract  have  been  definitely 
agreed  upon,  and  the  goods  have  been  specifically  ascertained, 
and  nothing  remains  to  be  done  by  the  seller  except  to  deliver 
the  goods,  or  by  the  buyer  except  to  pay  for  them,  the  title  will, 
unless  a  contrary  intention  appears,  vest  at  once  in  the  buyer, 
even  though  the  goods  have  not  been  delivered  or  paid  for. 

In  this  case,  as  has  been  seen,  the  buyer  may  retain  posses- 
sion until  the  goods  are  paid  for;  but  it  is  possession  which  he 
thus  retains  and  not  title. 

2.  Where,  by  the  agreement,  the  vendor  of  specific  goods  is 
bound  to  do  something  to  the  goods  for  the  purpose  of  putting 
them  into  that  condition  in  which  the  buyer  is  bound  to  accept 
them,  the  title  will  not  pass,  in  the  absence  of  evidence  show- 
ing an  intention  to  the  contrary,  until  such  thing  is  done. 

3.  Where,  though  the  specific  goods  are  in  a  deliverable  con- 

41. I 


§  502.]  LAW    OF    SALE.  [BOOK    IT. 

dition,  there  still  remains  some  act,  like  measuring,  weighing 
or  testing,  in  order  to  determine  the  price,  where  the  price  is 
to  depend  upon  the  quantity  or  quality  of  the  goods,  the  title 
usually  will  not  pass,  in  the  absence  of  evidence  of  an  intention 
to  the  contrary,  until  this  act  is  done. 

The  first  of  these  rules  has  been  already  considered  in  the 
present  chapter;  the  other  two,  with  many  other  forms  of 
more  express  conditions,  will  be  dealt  with  in  the  following 
chapter. 

§  502.  Question  of  intention,  by  whom  decided.—  The  ques- 
tion of  the  intention  of  the  parties  is  usually  one  to  be  deter- 
mined from  all  the  facts  and  circumstances  surrounding  the 
particular  case,  and,  like  such  questions  generally,  is  pre-emi- 
nently a  question  to  be  determined  by  a  jury.1 

Where,  however,  the  facts  are  not  disputed,  and  the  only 
question  is  one  as  to  their  legal  effect,  the  determination  is  for 
the  court.2  And  so  where  the  whole  contract  is  reduced  to 
writing,  the  question  whether  it  operates  as  a  present  transfer 
of  the  title  is  likewise  for  the  court.3 

1  Riddle  v.  Varnum,  20  Pick.  (Mass.)  and  whenever  a  dispute  arises  as  to 
280;  Lingharn  v.  Eggleston,  27  Mich,  the  true  character  of  the  agreement, 
324;  Byles  v.  Colier,  54  Mich.  1;  Cun-  the  question  of  intent  is  rather  one 
ningham  v.  Ashbrook.  20  Mo.  553;  of  fact  than  one  of  law;  and  the  find- 
Bates  v.  Conkling,  10  "Wend.  (N.  Y.)  ing  of  the  trial  court,  when  sustained 
389;  Olyphant  v.  Baker,  5  Denio  by  the  evidence,  will  not  be  disturbed 
(N.  Y.),  379;  Bogy  v.  Rhodes,  4  Greene  upon  review."  To  same  effect,  OTar- 
(Iowa),  133;  Towne  v.  Davis,  66  N.  H.  rel  v.  McClure,  —  Kan.  App.  — ,  47 
396,  22  Atl.  R.  450;  Kneeland  v.  Ren-  Pac.  R.  160;  Towne  v.  Davis,  supra. 
ner,  2  Kan.  App.  451,  43  Pac.  R.  95;  ^  Merchants'  Nat.  Bank  v.  Bangs, 
Graff  v.  Fitch,  58  111.  373,  11  Am.  102  Mass.  291;  Wigton  v.  Bowley,  130 
R.  85.  Mass.  252;  Kerr  v.  Henderson,  62  N. 

In  Kneeland  v.  Renner,  supra,  the  J.  L.  724,  42  Atl.  R.  1073;  Smalley  v. 

court  said:  "  In  a  contract  of  sale  of  Hendrickson,  29  N.  J.  L.  371. 

personal  property  the  intent  of  the  3  Leonard  v.  Davis,  1  Black  (IT.  S.), 

parties  controls,  and  if  they  intended  476;  Rail  v.  Little  Falls  Lumber  Co., 

a  present  vesting  of  the  title,  the  47  Minn.  422,  50  N.  W.  R.  471;  First 

title  may  in  fact  pass  at  once  to  the  Nat.  Bank  v.  Reno,  73  Iowa,  145,  34 

purchaser,  although  the  actual  de-  N.  W.  R  796;  Ruthrauff  v.  Hagen- 

livery  is  to  be  made  subsequently;  buch,  58  Pa.  St.  103. 

416 


CHAPTER  III. 


OF  THE  CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS. 


§  503.  Purpose  of  this  chapter. 
504-506.  What  classes  of  cases  to  be 
considered. 

L  Where  Goods  are  to  be  Pre- 
pared for  Delivery. 
507,  508.  Where  specific  goods  are 
to  be  completed  or  prepared 
for  delivery,  no  title  passes 
'  until  this  is  done. 
509-511.  Unless  a  contrary  inten- 
tion appears. 

512.  But  title  will  pass  when 

required  act  is  done. 

513.  Effect  of  part  performance  of 

condition. 
514  Effect  of  earnest  or  part  pay- 
ment. 


518. 


519. 


IL  Where  Goods  are  to  be  Meas- 
ured, Weighed  or  Tested. 
515-517.  Title  to  goods  not  de- 
livered presumptively  does 
not  pass  if  goods  are  yet  to 
be  weighed,  measured  or 
tested  to  ascertain  price. 

—  Presumption  not  conclu- 
sive. 

—  Broader   rule   in   some 
States. 

520,  521.  Nor  where  goods  are  yet 
to  be  measured,  etc.,  with  a 
view  to  identification. 

522,  523.  Nor  where  goods  are  yet 
to  be  measured,  etc.,  in  order 
to  ascertain  if  they  comply 
with  contract. 

524  By  whom  weighing,  etc.,  to  be 
done. 

27  417 


§  525-527.  How  where  whole  body  of 
goods  is  delivered  to  buyer. 

528.  What  delivery  sufficient. 

529,  530.  How  when  contem- 

plated method  fails. 

531.  Effect  of  part  performance. 

532.  Effect  of  earnest  or  part  pay- 

ment. 

IIL  Where  Buyer  is  to  do  Some- 
thing Other  than  to  Pay 
Price. 

533.  What  here  included. 

534.  535.  Title  will  not  pass  till  act 

performed. 
536.  Unless  a  contrary  intention 
appears. 


IV.   Where  Payment  of  Price  is  a 
Condition  Precedent. 

537.  What  here  included. 

1.  Payment  of  Price  as  Implied  Con- 
dition Precedent. 

538,  539.  In  general  —  Payment  as 
condition  precedent  when 
sale  for  cash. 

Payment  as  implied  condition 
where  sale  expressly  for 
cash. 

Meaning  of  "cash  sale." 

Title   may   pass  though 

possession  retained  —  Pay- 
ment and  delivery  concur- 
rent. 

543,  544  Or  title  may  not  pass 

until  payment. 
545.  Check  or  draft  not  pay- 
ment. 


540. 


541. 
542. 


LAW    OF    SALE. 


[HOOK    II. 


§  546,  547.  Giving  of  note  or  security 
as  condition  precedent. 

548.  Consideration  for  condi- 
tion. 

549.  Waiver  of  condition  of  pay- 

ment or  security. 

550.  Delivery   to    carrier    as 

waiver. 

551-553.  Further  of  waiver. 

554.  Goods  may  be  retaken  if  con- 

dition not  performed. 

555.  Even  from  bona  fide  pur- 
chaser. 

556.  Clearly  from   attaching 

creditors,  etc. 

557.  Usage  does  not  defeat. 

2.  Payment  of  Price  as  Express  Con- 
dition Precedent,  and  herein 
of  "Conditional  Sales"  or 
"Instalment  Contracts.''- 

558.  Formal  contracts  of  so-called 

"conditional  sales." 

559.  Confusion  respecting  name. 

560.  What  is  a  conditional  sale. 

561.  562.  What  varieties  pos- 

sible. 

563.  What    here    meant    by 

"conditional  sale." 

564.  Validity  and  form  of  "  condi- 

tional sale." 

565.  Contract  in  form  absolute 

shown  to  be  conditional. 

566.  Express  promise  co  pay 

does  not  render  absolute. 

567.  Construction    of    such    con- 

tracts. 

568.  Declaration  of  parties  not 

conclusive. 

569-571.  Instruments  in  form 

of  lease  held  conditional  con- 
tracts to  sell. 

572,  573.  Instruments  in  form 

of  lease  held  sales  upon  con- 
dition subsequent. 

574-576.  Instruments  in  form 

of  lease  held  absolute  sales  | 
418 


reserving   lien    or    chattel 
mortgages. 

577-579.  Instruments  in  form 

of  conditional  sale  held  ab- 
solute reserving  lien  or  mort- 
gages. 
580,  581.  The  rule  in  Pennsyl- 
vania. 

Bailment  and  conditional 

sale  distinguished. 
Conditional  sale  and  chat- 
tel mortgage  distinguished. 

The  true  theory. 

On  conditional  contract  to  sell 
no  title  passes  until  perform- 
ance. 

Note  not  payment. 

587.  Nature  of  interest  acquired  by 
vendee. 

Whether  assignable  or 

leviable. 
Entitled  to  legal  protec- 
tion. 

Performance  of  condition 

inures  to  benefit  of  trans- 
feree. 
Nature  of  interest  retained  by 
vendor. 

Interest    may  be    sold, 

seized,  etc. 

May  assign  interest  with 

contract. 
594-596.  The  right  of  possession. 
597,598.  Condition    good   against 

creditors  of  vendee. 
599, 600.  Condition    good  against 
bona  fide  purchaser. 

601,  602.  But  not  where  goods 

bought  for  resale. 
603,604.  Statutes  requiring  filing 

or  recording  of  contract. 
605.  Default  by  purchaser  — What 

constitutes. 
606-608.    Effect    of    vendee's    de- 
fault. 
609-612.  Waiver    of    default    by 
seller. 


582. 
583. 

584. 

5S5. 


586. 


588. 


589. 


590. 


591. 


592. 


593. 


•CH.  HI.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


§  613,  614.  Remedies  of  seller  upon 
default. 

615.  What  choice  offered. 

616.  Election  of  remedy. 

617.  Rescission. 

618.  Recaption. 

619.  Personal  action. 

620-623.  Does    recovery  of   goods 

bar  action  for  price? 

624.  Waiver  by  vendor  of  right 

to  retake  property. 

625.  Vendee  usually  has  no  elec- 

tion. 

626.  627.  Vendee's  right  to  take  pos- 

session on  default  —  Entry 
on  premises  —  License. 

628.  Necessity  of  demand  before 

recovery. 

629.  Return  of  payments  if  prop- 

erty retaken  by  seller. 

630.  Equities  of  purchaser. 

631.  How  when  action  against 

third  person. 

632.  633.  Return  of  notes  re- 

ceived. 
634,  635.  Destruction    of  property 
before  payment. 

636.  Additions  to    or  increase  of 

property  before  payment. 

637.  Additions    to   stock  of 

goods  sold. 

638-641.  Changes  in  form  or  nature 
of  property. 

642.  Accession    and  confusion  of 

goods. 

643.  Substitution  of  goods. 
644-647.  Effect  of  annexing  goods 

to  land. 
648-650.  Conflict  of  laws. 

V.  Contracts  of  Sale  Subject  to 
Other  Conditions. 

651.  In  general 

1.  Sale  of  Goods  "to  Arrive." 

652.  Such  contracts  conditioned 

on  arrival  of  the  goods. 


5  653.  Contracts    limiting    time    of 
shipment. 

654.  Giving  notice  of  name  of  ship. 

655.  Classification  of  cases. 

2.  Sale  of  Goods  "  to  be  Shipped." 

656.  Such  contracts  conditional. 

3.  Sale  on  Approval. 

657.  Sale,  if  goods  are  approved. 

658.  Title    and   risk    pending  ap- 

proval. 

659.  Within  what  time  option  to 

be  exercised. 

660.  Effect    of  failure    to   return 

within  time  fixed. 

661.  Necessity  for  notice  of  disap- 

proval. 

662.  How  notice  to  be  given. 

4.  Sale  if  Goods  Satisfactory  to 
Buyer. 

663.  Sale  if  buyer  satisfied. 
064.  Who  to  be  satisfied. 

66o.  If  buyer  not  satisfied,  no  sale. 

666.  Reasons    for    his    dissatisfac- 

tion. 

667.  Duty  to  test  goods. 

668.  Duty  to  act  in  good  faith. 

669.  Within  what  time  decision  to 

be  made. 

670.  Duty  to  give  notice  or  return. 

671.  How  buyer's  satisfaction  in- 

dicated. 

5.  Sale  of  Goods  Approved  by  Third 
Person. 

672.  No  sale  unless  goods  approved. 

673.  Third  person  must  act  in  good 

faith. 

6.  Sale  of  Goods  to  be  Appraised. 

674  Title  does  not  pass  until  ap- 
praisal. 

7.  Sale  or  Return. 
675,  676.  Sale  with  option  to  return 
or  pay. 


419 


§§  503,  504.] 


§  677.  Nature  of  title  acquired  by 
vendee  —  Risk  of  loss. 

678.  Option  usually  vendee's  only — 

Security  of  seller. 

679.  Stipulations    reserving 

title. 

680.  Form  of  option. 

681.  Within  what  time  option  ex- 

ercised. 

682.  Effect    of    not    returning    in 

time  prescribed. 

683.  How,  when  buyer  puts  it  out 

of  his  power  to  return. 
684  How,  when  return   becomes 
impossible. 

685.  How  return  effected. 

8.  Sale  with  Option  in  Vendee  to  Re- 
take. 

686.  Title  in  vendee  until  option 

exercised. 


LAW    OF    SALE.  [BOOK    II. 

687.  "Waiver  of  option. 


9.  Sale  with  Right  in  Vendee  to  Re- 

purchase. 

688.  Title  in  vendee  until  right  ex- 

ercised. 

689.  Such   contracts  strictly  con- 

strued. 

690.  Within  what  time  right  exer- 

cised. 

691.  Interests  in  goods  before  re- 

purchase. 

10.  Sale  to  be  Void  if  Vendor  Pays. 

692.  Such  contracts  valid. 

11.  Sale  to  be  Void  if  Vendee  Does 

Not  Pay. 

693.  Such  contracts  valid. 


§  503.  Purpose  of  this  chapter. —  In  the  preceding  chapter 
there  has  been  considered  the  case  of  the  unconditional  sale 
of  a  specific  chattel.  But,  as  has  been  already  intimated,  this 
is  but  one  of  a  number  of  forms  which  the  contract  may  as- 
sume, each  of  which  requires  special  consideration.  The  one 
most  closely  allied  to  the  form  discussed  in  the  foregoing  chap- 
ter is,  perhaps,  the  case  in  which  the  chattel  is,  as  there,  iden- 
tified and  certain,  but  in  which  the  contract  for  its  sale  is  sub- 
ject to  conditions,  express  or  implied,  and  either  precedent  or 
subsequent. 

§  5<M.  What  classes  of  cases  to  be  considered. —  The  forms 
which  the  conditional  contract  of  sale  may  assume  are  various. 
Two  classes  of  cases  were,  by  Lord  Blackburn,  said  to  arise,  for 
which  he  laid  down  the  following  rules,  the  substance  of 
which  has  already  been  referred  to  in  another  connection  in 
the  preceding  chapter: 

First.  "Where  by  the  agreement  the  vendor  is  to  do  any- 
thing to  the  goods  for  the  purpose  of  putting  them  into  that 
state  in  which  the  purchaser  is  to  be  bound  to  accept  them, 

420 


OH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC   CHATTEL'S.  [§  504. 

or,  as  it  is  sometimes  worded,  into  a  deliverable  state,  the  per- 
formance of  those  things  shall,  in  the  absence  of  circumstances 
indicating  a  contrary  intention,  be  taken  to  be  a  condition 
precedent  to  the  vesting  of  the  property. 

Secondly.  Where  anything  remains  to  be  done  to  the  goods, 
for  the  purpose  of  ascertaining  the  price,  as  by  weighing, 
measuring  or  testing  the  goods,  where  the  price  is  to  depend 
on  the  quantity  or  quality  of  the  goods,  the  performance  of 
these  things  also  shall  be  a  condition  precedent  to  the  transfer 
of  the  property,  although  the  individual  goods  be  ascertained, 
and  they  are  in  the  state  in  which  they  ought  to  be  accepted. 

But  this  rule  has  not  been  followed  to  this  extent  in  this 
country,  as  will  be  seen,  and  Lord  Blackburn  himself  did  not 
approve  of  it.1 


iLord  Blackburn  says  of  these 
rules:  "  The  first  of  these  rules  seems 
to  be  founded  in  reason.  In  general, 
it  is  for  the  benefit  of  the  vendor 
that  the  property  should  pass;  the 
risk  of  loss  is  thereby  transferred  to 
the  purchaser,  and  as  the  vendor 
may  still  retain  possession  of  the 
goods  so  as  to  retain  a  security  for 
the  payment  of  the  price,  the  trans- 
ference of  the  property  is  to  the 
vendor  pure  gain.  It  is  therefore 
reasonable  that  where,  by  the  agree- 
ment, the  vendor  is  to  do  something 
before  he  can  call  upon  the  pur- 
chaser to  accept  the  goods  as  corre- 
sponding to  the  agreement,  the  in- 
tention of  the  parties  should  be  taken 
to  be  that  the  vendor  was  to  do  this 
before  he  obtained  the  benefit  of  the 
transfer  of  the  property.  The  pre- 
sumption does  not  arise  if  the  things 
might  be  done  after  the  vendor  had 
put  the  goods  in  the  state  in  which 
he  had  a  right  to  call  upon  the  pur- 
chaser to  accept  them,  and  would  be 
unreasonable  where  the  acts  were  to 
be  done  by  the  buyer,  who  would 


thus  be  rewarded  by  his  own  de- 
fault. 

"The  second  rule  seems  to  be 
somewhat  hastily  adopted  from  the 
civil  law,  without  adverting  to  the 
great  distinction  made  by  the  civil- 
ians between  a  sale  for  a  certain 
price  in  money  and  an  exchange  for 
anything  else.  The  English  law 
makes  no  such  distinction,  but,  as  it 
seems,  has  adopted  the  rule  of  the 
civil  law,  which  seems  to  have  no 
foundation  except  in  that  distinc- 
tion. 

"  In  general,  the  weighing,  etc., 
must  from  the  nature  of  things  be 
intended  to  be  done  before  the  buyer 
takes  possession  of  the  goods,  but 
that  is  quite  a  different  thing  from 
intending  it  to  be  done  before  the 
vesting  of  the  property;  and  as  it 
must  in  general  be  intended  that 
both  the  parties  shall  concur  in  the 
act  of  weighing,  when  the  price  is  to 
depend  upon  the  weight,  there  seems 
little  reason  why,  in  cases  in  which 
the  specific  goods  are  agreed  upon, 
it  should  be  supposed  to  be  the  in- 


421 


§§  505-507.]  LAW   OF   SALE.  [dook   II. 

§  505.  .  To  these  two  rules  of  Lord  Blackburn,  Mr.  Ben- 
jamin added  a  third,  as  follows: 

Thirdly.  Where  the  buyer  is  by  the  contract  to  do  anything 
as  a  condition,  either  precedent  or  concurrent,  on  which  the 
passing  of  the  property  depends,  the  property  will  not  pass 
until  the  condition  be  fulfilled,  even  though  the  goods  may 
have  been  actually  delivered  into  the  possession  of  the  buyer. 

The  thing  which  the  buyer  is  thus  to  do  under  this  rule  is, 
usually,  to  pay  the  price ;  but  it  may  be  something  else,  as  will 
be  seen. 

To  these  three  must  clearly  be  added  another,  as  follows: 

Fourthly.  Where,  by  the  terras  of  the  contract,  any  other 
act  or  event  is  made  a  condition  of  the  passing  of  the  title,  the 
property  will  not  pass  unless  and  until  such  act  or  event  hap- 
pens or  the  performance  is  waived. 

§  506.  .  These  cases  will  be  seen  to  be,  in  brief: 

1.  Where  the  seller  is  yet  to  prepare  the  goods  for  delivery. 

2.  Where  something  remains  to  be  done  to  ascertain  the  price. 

3.  Where  the  buyer  is  to  do  something,  other  than  to  pay  the 
price,  before  he  acquires  the  title,  even  though  he  may  already 
have  possession.  4.  Where  the  buyer  is  to  pay  the  price  be- 
fore he  acquires  the  title.  5.  Where  the  sale  is  made  upon 
some  other  condition. 

Taking  these  up  in  their  order,  there  may  be  considered  — 

I. 

Where  Goods  are  to  be  Prepared  foe  Delivery. 

§  507.  Where  specific  goods  are  to  be  completed  or  pre- 
pared for  delivery  no  title  passes  until  this  is  done. —  Where, 
though  the  goods  are  identified,  the  seller  is,  by  the  terms  of 

tention  of  tlie  parties  to  render  the  definition  of  a  perfect  sale,  transfer- 
delay  of  that  act,  in  which  the  buyer  ring  the  risk  and  gain  of  the  thing 
is  to  concur,  beneficial  to  him.  sold;  but  the  English  law  does  not 
Whilst  the  price  remains  unascer-  require  that  the  consideration  for  a 
tained,  the  sale  is  clearly  not  for  a  bargain  and  sale  should  be  in  moneys 
certain  sum  of  money,  and  therefore  numbered,  provided  it  be  of  value.'* 
does  not  come  within  the  civilian's  Blackburn  on  Sales,  175. 

422 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  508. 


the  contract,  to  do  something  to  them,  other  than  merely  count- 
ing, weighing,  measuring,  and  the  like,  to  finish  the  goods  or 
prepare  them  for  delivery  in  the  form  or  condition  in  which, 
by  the  terms  of  the  contract,  they  are  to  be  delivered  (not  yet 
speaking  of  contracts  for  the  manufacture  of  goods  not  in  ex- 
istence), the  first  of  the  rules  as  laid  down  by  Lord  Blackburn 
applies;  and  the  title  will  not  pass  until  the  thing  required  has 
been  done,  even  though  the  goods  are  paid  for,  unless,  from 
the  terms  of  the  contract  or  the  conduct  of  the  parties,  a  con- 
trary intention  clearly  appears. 


508. 


Thus  if  cattle  contracted  to  be  sold  are  yet  to 


be  fattened,1  or  cotton  sold  is  to  be  ginned  and  baled,2  or  char- 
coal partly  burned  is  to  be  completed,3  or  hides  partly  tanned 
are  to  be  finished,4  or  fish  contracted  for  are  to  be  dried,5  or 
oats  are  yet  to  be  threshed,6  or  the  goods  are  to  be  brought  to 
a  certain  place,7  by  the  seller  before  delivery,  the  title  will  not 


iRestad  v.  Engemoen  (1896),  65 
Minn.  148,  67  N.  W.  R.  1146;  Rourke 
v.  Bullens  (1857),  8  Gray  (Mass.),  549. 

2  Smith  v.  Sparkman  (1878),  55  Miss. 
649,  30  Am.  R.  537;  The  Elgee  Cotton 
Cases  (1874),  22  Wall.  (U.  S.)  180; 
Screws  v.  Roach  (1853),  22  Ala.  675. 

3  Hale  v.  Huntley  (1849),  21  Vt.  147. 

4  Pritchett  v.  Jones  (1833),  4  Rawle 
(Pa.),  260. 

5  Foster  y.  Ropes  (1872),  111  Mass.  10. 

6  Groff  v.  Belche  (1876),  62  Mo.  400. 

7  McDonald  v.  Hewett,  15  Johns. 
(N.  Y.)  349,  8  Am.  Dec.  241;  Acraman 
v,  Morris,  8  C.  B.  449;  Miller  v.  Sea- 
man, 176  Pa.  St.  291,  35  Atl.  R.  134; 
North  Pac.  Lum.  Co.  v.  Kerron,  5 
Wash.  214,  31  Pac.  R,  595;  McClung 
v.  Kelley,  21  Iowa,  508;  Johnson  v. 
Bailey,  17  Colo.  59, 28  Pac.  R.  81.  But 
see  as  to  this,  §  487,  ante;  Terry  v. 
Wheeler,  25  N.  Y.  520;  Rail  v.  Little 
Falls  Lumber  Co.,  47  Minn.  422,  50  N. 
W.  R.  471. 

So  where  wheat,  bargained  for  in 


the  stack,  is  yet  to  be  threshed,  trans- 
ported to  a  certain  place  and  there 
weighed,  and  then  to  be  transported 
to  another  place  for  delivery  by  the 
bargainor,  it  does  not,  as  matter  of 
law,  become  the  property  of  the  bar- 
gainee at  the  time  the  contract  is 
made.  Caywood  v.  Timmons  (1884), 
31  Kan.  394.  So  a  contract  for  logs 
not  yet  cut,  but  to  be  cut  and  scaled, 
passes  no  present  interest.  Martin 
v.  Hurlbut  (1864),  9  Minn.  142.  Where 
a  contract  is  made  for  the  sale  of  a 
crop  of  wool,  to  be  put  in  bags  and 
weighed,  the  contract  is  executory. 
Straus  v.  Ross  (1865),  25  Ind.  300.  So, 
where  an  "  unprised  crop  of  tobacco  " 
has  still  to  be  prepared  for  delivery 
and  weighed,  title  does  not  pass  by  a 
contract  of  sale.  Jennings  v.  Flanagan 
(1837),  5  Dana  (Ky.),  217, 30  Am.  D.  683. 
So,  where  a  wagon  is  sold,  to  which 
certain  parts  are  to  be  added,  no  pres- 
ent interest  passes.  Allman  v.  Davis 
(1841),  2  Ired.  (N.  C.)  12.    Where  a 


423 


§§  509,  510.] 


LAW    OF    SALE. 


[BOOK   II. 


pass,  in  the  absence  of  a  clear  intention  to  the  contrary,  until 
these  respective  acts  have  been  performed. 

509.  Unless  a  contrary  intention  appears.— It  is 


unquestionable,  however,  that  a  person  may  buy  a  chattel  in 
an  unfinished  condition,  and  acquire  the  right  of  property  in  it, 
although  possession  be  retained  by  the  seller  to  fit  it  for  deliv- 
ery. "But  in  such  a  case,"  said  the  supreme  court  of  the 
United  States,  "  the  intention  to  pass  the  ownership  by  the  con- 
tract cannot  be  left  in  doubt.  The  presumption  is  against  such 
an  intention." l 


§  510.  .  On  the  ground,  therefore,  that  the  intention  to 

pass  the  title  at  once  was  clear,  it  was  held 2  where  a  buggy  in 
an  unfinished  condition  was  bargained  for  and  the  full  price 
paid,  but  the  buggy  was  left  in  the  maker's  possession  to  bo 
painted,  that  the  title  had  at  once  passed  to  the  buyer,  though 
the  court  relied  upon  the  English  cases  of  Clarice  v.  Sjoence 3  and 


seller  is  to  feed  hogs,  and  weigh  and 
deliver  them,  title  does  not  pass. 
Lester  v.  East  (1875),  49  Ind.  588.  So, 
too,  where  wood  is  contracted  for 
before  it  is  all  cut,  to  be  measured 
and  delivered  to  the  vendee  by  the 
choppers  when  they  have  finished 
the  chopping,  there  is  no  present 
sale.  Frost  v.  Woodruff  (1870).  54  111. 
155.  And  where  a  vendor  agrees  to 
sell  all  the  grain  harvested  by  him, 
both  that  which  has  been  and  that 
which  is  to  be  harvested,  and  sack 
it,  and  carry  it  to  a  specified  place, 
the  contract  passes  no  title  to  the 
property.  Hamilton  v.  Gordon  (1892), 
22  Oreg.  557,  30  Pac.  R.  495.  So, 
where  stone  is  to  be  kept  in  a  ware- 
house, storage  charges  paid  by  the 
vendor,  and  the  stone  delivered  to 
the  vendee  when  wanted,  the  con- 
tract is  merely  executoiy.  Malone 
v.  Minn.  Stone  Co.  (1887),  36  Minn. 


325,  31  N.  W.  R.  170.  So,  a  contract 
for  the  purchase  of  a  cutter  which 
is  to  be  finished  and  delivered  within 
a  certain  time  does  not  vest  the  title 
in  the  vendee.  Halterline  v.  Rice 
(1863),  62  Barb.  (N.  Y.)  593.  And, 
where  coal  is  purchased  under  the 
stipulation  that  the  contract  shall 
not  be  binding  unless  the  coal  is  de- 
livered in  accordance  with  the  offer 
of  an  agent  as  set  forth  in  a  letter 
of  a  certain  date,  no  property  passes. 
Neldon  v.  Smith  (1873),  36  N.  J..L. 
148. 

i  The  Elgee  Cotton  Cases,  22  Wall. 
(U.S.)  180. 

^Butterworth  v.  McKinly,  11 
Humph.  (Tenn.)  206.  To  like  effect: 
Paine  v.  Young,  56  Md.  314.  Compare 
Halterline  v.  Rice,  62  Barb.  (N.  Y.) 
593,  in  preceding  section. 

3  4  Ad.  &  El.  448. 


424 


CH.  III.]       CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.       [§  511-513. 

Woods  v.  Russell,1  which,  as  will  be  seen,2  have  not  been  gener- 
ally approved  in  the  United  States. 

§  511.  .  "  In  all  cases,  however,"  said  the  supreme  court 

of  Massachusetts,3  "  the  intention  of  the  parties  as  to  the  time 
when  the  title  is  to  pass  can  be  ascertained  only  from  the  terms 
of  the  agreement,  as  expressed  in  the  language  and  conduct  of 
the  parties,  and  as  applied  to  known  usage  and  the  subject- 
matter.  It  must  be  manifested  at  the  time  the  bargain  is  made. 
The  rights  of  the  parties  under  the  contract  cannot  be  affected 
by  their  undisclosed  purposes,  or  by  their  understanding  of  its 
legal  effect." 

§  512.  But  title  will  pass  when  act  required  is  done. 

But  although  the  title,  in  the  absence  of  a  contrary  intention, 
will  thus  not  pass  until  the  act  required  has  been  performed, 
yet  when  that  act  is  fully  performed  so  that  nothing  further 
remains  to  be  done  to  put  the  goods  into  that  state,  place  or 
condition  in  which  the  Durchaser  is  bound  to  accept  them,  the 
title  will  then  pass.4 

§513.  Effect  of  part  performance  of  the  condition. —  Or- 
dinarily the  fact  that  a  part  of  that  which  was  to  be  done  has 
been  performed  is  ineffectual  to  pass  the  title,  unless  the  per- 
formance of  the  residue  has  been  waived.  Where  the  contract 
is  entire,  the  vendee  is  not  obliged  to  accept  a  part  perform- 
ance, but  may  insist  upon  the  whole;  and  the  vendor  who  is 
seeking  to  enforce  the  contract  must  show  a  full  performance 
on  his  part  or  a  waiver  of  it  by  the  vendee.5  And  even  if  part 
of  the  goods,  under  an  entire  contract,  having  been  fitted  for 
delivery,  are  actually  delivered  to  the  vendee,  it  has  been  held 
that  no  title  to  that  part  passes  in  the  absence  of  evidence  that 
the  vendee  has  accepted  that  part  and  waived  the  delivery  of 
the  remainder.6 

1 5  B.  &  Aid.  942.  5The  Elgee  Cotton  Cases  (1874).  89 

2  See  post,  §  754,  note,  U.  S.  (22  Wall.)  180.     See  also?'  1308. 

3  Foster  v.  Ropes  (1872),  111  Mass.  10.  BKein  v.  Tupper   (1873),  52  N.  Y. 
*  Bond  v.  Greenwald  (1871),  4  Heisk.  550. 

(Tenn.)  453;  Groff  v.  Belche  (1876),  62  In  Kein  t.  Tupper,  supra,  the  con- 
Mo.  400.  tract  was  for  one  hundred  and  uine- 

425 


§  514.] 


LA.W    OF   SALE. 


[BOOK    II. 


§514.  Effect  of  earnest  or  part  payment. —  The  fact  that 
earnest  has  been  given  or  part  payment  made  will  not  operate 
to  pass  the  title  in  these  cases.  The  only  effect  of  earnest  is  to 
confirm  the  contract,  and  the  question  whether  the  title  has 
passed  under  that  contract  remains  as  before.1 


teen  bales  of  cotton  to  be  fitted  for 
delivery.  Seventy  bales  only  were 
taken  out  of  the  warehouse,  weighed 
and  samples  taken,  and  returned  to 
the  warehouse,  and  then  further 
work  was  postponed  until  next  day. 
That  night  the  warehouse  burned 
and  all  the  cotton  was  damaged  or 
destroyed.  The  action  was  for  the 
price  of  the  seventy  bales.  The  court 
said:  "  But  if  there  was  a  delivery  of 
seventy  bales,  the  action  could  not 
be  sustained.  The  contract  was  en- 
tire, and  the  plaintiffs  [the  sellers] 
must  prove  performance  to  entitle 
them  to  recover.  The  defendants 
purchased  one  hundred  and  nineteen 
bales,  to  be  paid  for  when  delivered. 
Until  the  delivery  of  the  whole 
quantity  no  action  accrued  to  the 
plaintiffs.  While  the  destruction  of 
the  subject-matter  of  the  contract, 
without  fault  of  the  plaintiffs,  would 
relieve  them  from  an  action  for  dam- 
ages for  not  performing  the  con- 
tract, yet  it  would  not  enable  them 
to  enforce  a  part  performance 
against  the  defendants.  (Dexter  v. 
Norton,  47  N.  Y.  62.)  The  rule  is  well 
settled  in  this  State  that,  upon  a  con- 
tract for  the  delivery  of  a  specified 
quantity  of  property,  payment  to  be 
made  on  delivery,  no  action  will  lie 
until  the  whole  is  delivered.  (Champ- 
lin  v.  Rowley,  13  Wend.  259;  Mead 
v.  Degolyer,  16  Wend.  632;  Russell  v. 
Nicoll,  3  Wend.  112;  Baker  v.  Hig- 
gins,  21  N.  Y.  397;  Norton  v.  Wood- 


ruff, 2  N.  Y.  153.)  The  English  rule, 
that  a  recovery  may  be  had  for  the 
portion  delivered,  if  retained  until 
after  the  time  for  full  performance 
(as  held  in  Oxendale  v.  Wetherell,  9 
B.  &  C.  3S6,  17  Eng.  Com.  L.  177,  an, I 
other  cases),  has  never  been  adopted, 
but  expressly  repudiated  by  the 
courts  of  this  State.  (See  cases  cited 
supra.)  That  rule  rests  upon  no 
solid  foundation,  and  in  effect  en- 
ables courts  to  alter  the  terms  of 
contracts  as  made  by  parties. 

"The  right  of  a  vendor  to  demand 
the  portion  delivered  in  a  case  of  the 
destruction  of  the  remainder,  so  that 
full  performance  by  the  vendor  is 
impossible,  need  not  be  considered, 
because  in  this  case  the  plaintiffs  had 
all  the  cotton  claimed  to  have  been 
delivered,  which  was  not  destroyed. 
A  vendee  may  accept  a  delivery  of  a 
part  of  the  property,  and  waive  the 
delivery  of  the  remainder,  and  this 
may  be  shown  by  circumstances;  but 
in  this  case  there  is  not  the  slightest 
circumstance  tending  to  establish 
such  acceptance  and  waiver.  Both 
parties  expected  to  perform  the  con- 
tract in  full.  The  unfortunate  acci- 
dent prevented  it  before  the  title 
had  passed  from  the  vendors,  and 
the  misfortune  is  theirs." 

i  The  Elgee  Cotton  Cases  (1874),  89 
U.  S.  (22  Wall.)  180;  Nesbit  v.  Burry 
(1855),  25  Pa.  St.  208;  Jennings  v. 
Flanagan  (1837),  5  Dana  (Ky.),  217,  30 
Am.  Dec.  683. 


426 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  515. 


II. 

"Wheke  Goods  are  to  be  Measured,  "Weighed  or  Tested. 

§  515.  Title  to  goods  not  delivered  presumptively  does  not 
pass  if  goods  are  yet  to  be  weighed,  measured  or  tested  in 
order  to  ascertain  price. —  The  question  of  the  passing  of  title 
to  goods  not  delivered,  which  are  yet  to  be  weighed,  measured 
or  tested' in  order  to  ascertain  the  price,  is  one  upon  which  the 
English  and  American  courts  are  not  in  harmony,  nor  are  all 
of  the  cases  in  this  country  consistent. 

Lord  Blackburn's  second  rule,  as  has  been  seen,1  declared  that 
wrhere  anything  remains  to  be  done  to  the  goods  for  the  pur- 


ree ante,  §  504  In  Hanson  v. 
Meyer,  6  East,  614,  a  lot  of  starch 
lying  in  a  warehouse  had  been  sold 
at  so  much  per  hundred  weight,  and 
the  seller  had  directed  the  warehouse- 
man to  weigh  and  deliver  it.  After 
part  had  been  weighed  and  delivered 
the  buyer  became  bankrupt,  where- 
upon the  sellet  refused  to  permit  the 
delivery  of  any  more.  Held,  that  the 
title  to  the  undelivered  portion  had 
not  passed  because  "the  price  is  made 
to  depend  upon  the  weight." 

In  Rugg  v.  Minett,  11  East.  210,  a 
quantity  of  turpentine  had  been  sold, 
part  of  which  was  to  be  put  up  in 
lots  of  a  specified  quantity,  after 
which  the  balance  was  to  be  meas- 
ured and  paid  for.  Before  this  was 
entirely  done  it  was  consumed  by  fire. 
Held,  that  the  title  passed  in  those 
lots  only  which  had  been  put  up. 

In  Simmons  v.  Swift,  5  B.  &  C.  857, 
bark  had  been  sold  at  a  given  price 
per  ton.  Part  was  weighed,  paid  for 
and  taken  away,  but  title  to  the  bal- 
ance was  held  not  to  have  passed  be- 
cause not  yet  weighed. ' 

In  Logan  v.  Le  Mesurier,  6  Moore, 
P.  C.  116,  a  quantity  of  timber,  con- 
taining about  a  given  quantity,  was 


sold  at  a  given  price  per  foot  to  be 
delivered  at  a  given  place  and  meas- 
ured. The  purchasers  paid  down  the 
price  at  the  rate  agreed  upon  for  the 
supposed  quantity,  and  the  surplus 
or  deficiency  was  to  be  provided  for 
when  measured.  The  timber  did  not 
arrive  at  the  prescribed  place  at  the 
time  agreed  upon,  and  a  great  part 
of  it  was  then  lost  in  a  storm  before 
measurement  and  delivery.  Held, 
that  title  passed  only  to  so  much  as 
was  measured  and  received,  and  the 
purchasers  could  recover  the  excess 
paid  on  the  price. 

In  the  similar  case  of  Gilmour  v. 
Supple,  11  Moore,  P.  C.  551,  the  lum- 
ber had  been  delivered  to  the  buyer's 
agent  and  was  then  lost  in  a  storm. 
It  was  shown  that  before  delivery  it 
had  been  measured  by  a  public  officer 
and  was  not  to  be  again  measured  by 
the  seller.  Held,  that  the  title  had 
passed. 

In  Tansley  v.  Turner,  2  Scott.  238, 
2  Bing.  N.  C.  151,  a  quantity  of  tim- 
ber had  been  sold  at  so  much  per 
cubic  foot  with  privilege  to  convert 
on  the  land.  Part  was  measured  and 
removed  the  same  day,  and  the  sell- 
er's ajrent  marked  and  measured  the 


437 


§  516.]  LAW    OF    SALE.  [BOOK    IT. 

pose  of  ascertaining  the  price,  as  by  weighing,  measuring  or 
testing  the  goods,  where  the  price  is  to  depend  on  their  quan- 
tity or  quality,  the  performance  of  this  act  shall  be  a  condition 
precedent  to  the  transfer  of  the  property,  even  though  the 
goods  are  ascertained  and  are  in  the  state  in  which  they  ought 
to  be  accepted.  This  rule,  modified  with  respect  of  notice  and 
intention,  has  been  incorporated  in  the  English  Sale  of  Goods 
Act  as  follows:  "Unless  a  different  intention  appears  .  .  . 
where  there  is  a  contract  for  the  sale  of  specific  goods  in  a  de- 
liverable state,  but  the  seller  is  bound  to  weigh,  measure,  test 
or  do  some  other  act  or  thing  with  reference  to  the  goods  for 
the  purpose  of  ascertaining  the  price,  the  property  does  not 
pass  until  such  act  or  thing  be  done,  and  the  buyer  has  notice 
thereof."1 

§  516.  In  the  United  States  the  courts  generally  have 

not  gone  to  the  extent  of  declaring  the  act  to  be  absolutely  a 
condition  precedent,  as  in  Lord  Blackburn's  rule,  and  the  posi- 
tion assumed  by  the  majority  may  perhaps  be  stated  thus: 
Where,  under  a  fair  construction  of  the  contract,  some  act  other 
than  separation  from  a  larger  mass  remains  to  be  done  in  order 
to  determine  the  amount  to  be  paid,  where  this  depends  upon 
the  quantity  or  quality  of  the  goods  not  yet  delivered,  as  to 
count,  weigh,  measure  or  inspect  them,  the  performance  of  this 
act,  in  the  absence  of  anything  showing  a  contrary  intention, 
is  presumptively  a  condition  precedent  to  the  passing  of  the 
title;  and  the  title,  therefore,  in  the  absence  of  an  intention  to 
the  contrary,  will  not  pass  until  such  act  be  done,  although  the 
goods  are  definitely  ascertained,  and  are  in  all  respects  in  the 
condition  in  which  they  ought  to  be  accepted.2 

remaining  trees,  putting  down  the  1  Sale  of  Goods  Act.  §  18,  rule  3. 

figures  but  not  computing  the  whole,  2  In  Byles  v.  Colier  (1884),  54  Mich, 

and  saying  that  he  would  make  out  a  1,  Cooley,  C.  J.,  says:    "In  Lingham 

statement  and  send  it  to  the  buyer,  v.  Eggleston,  27  Mich.  324,  it  was  de- 

which  was  not  done.    Held,  that  the  cided  that  the  question  whether  a 

title  passed,  as  nothing  remained  to  be  sale  is  completed  or  only  executory 

done  by  the  vendor.    To  same  effect:  is  usually  one  to  be  determined  from 

Cooper  v.  Bill,  3  H.  &  C.  722.  the  intent  of  the  parties  as  gathered 

428 


CH.  III.]  CONDITIONAL    SALE    OF   SPECIFIC    CHATTELS. 


[§  517. 


g  517.  .  Failure  to  perform  such  a  condition  precedent 

may  be  taken  advantage  of  by  either  party,  and  it  is  immate- 
rial whether  the  weighing,  measuring  or  testing  is  imposed  by 
the  contract  as  an  obligation  or  is  reserved  as  a  privilege. 


from  their  contract,  the  situation  of 
the  thing  sold,  and  the  circumstances 
surrounding  the    sale;    that  where 
the  goods  sold  are  designated  so  that 
no  question  can  arise  as  to  the  thing 
intended,  it  is  not  absolutely  essen- 
tial that  there  should  be  a  deliver}-, 
or  that  the  goods  should  be  in  a  de- 
lis erable  condition,  or  that  the  quan- 
tity or  quality,  when  the  price  de- 
pends upon  either  or  both,  should 
be  determined,  these  being  circum- 
stances   indicating   intent,  but  not 
conclusive;  but  that  where  anything 
is  to  be  clone  by  the  vendor,  or  by 
the  mutual  concurrence  of  both  par- 
ties, for  the  purpose  of  ascertaining 
the  price  of  the  goods,  as  by  weigh- 
ing,   testing    or    measuring    them, 
where  the  price  is  to  depend  upon 
the  quantity  or  quality  of  the  goods, 
the  performance  of  these  things,  in 
the  absence  of  anything  indicating  a 
contrary  intent,  is  to  be  deemed  pre- 
sumptively a  condition  precedent  to 
the  transfer  of  the  property,  although 
the  individual  goods  be  ascertained, 
and  they  appear  to  be  in  a  state  in 
which  they  may  be  and  ought  to  be 
accepted.    This    case    has  been   re- 
ferred to  with  approval  in  the  sub- 
sequent cases  of  Hatch  v.  Fowler,  28 
Mich.  205;    Hahn  v.  Fredericks.   30 
Mich.   22:3,   18  Am.  R   119;  Wilkin- 
son v.  Holiday,  33  Mich.  386;  Grant 
v.  Merchants',  etc.  Bank,  35  Mich.  515; 
Scotten  v.  Sutter,  37  Mich.  52G;  Car- 
penter   v.  Graham,    42    Mich.    191; 
Brewer  v.  Salt  Association,  47  Mich. 
526.    The    cases    elsewhere    to    the 
same  effect  are  numerous,  and  many 


of  them  are  collected  in  Mr.  Ben- 
nett's note  to  section  319  of  the  third 
edition  of  Benjamin  on  Sales.     And 
see  Kelsea  v.  Haines,  41  N.  H.  246; 
Southwestern  Freight  Co.  v.  Stanard. 
44  Mo.  71,  100  Am.  Dec.  255;  Shelton 
v.   Franklin,  68  111.  333;    Straus  v. 
Minzesheimer,  78  111.  492;  Crofoot  v. 
Bennett.  2  N.  Y.  258;  Groat  v.  Gile, 
51  N.  Y.  431;  Burrows  v.  Whitaker, 
71  N.  Y.  291,  27  Am.  R.   42;   Dennis 
v.   Alexander,   3  Pa.  St.  50;    Gallo- 
way v.  Week,  54  Wis.  604;  Cay  wood 
v.  Timmons,  31  Kan.  394.     That  the 
cases  referred  to  settle  the  general 
principle,  at  least  for  this  State,  is 
beyond  question  or  cavil.     Presump- 
tively the  title  does  not  pass,  even 
though  the  articles  be  designated,  so 
long  as  anything  remains  to  be  done 
to  determine  the  sum  to  be  paid;  but 
this  is  only  a  presumption,  and  is  lia- 
ble to  be  overcome  by  such  facts  and 
circumstances  as  indicate  an  intent 
in  the  parties  to  the  contrary." 

The  case  of  Lingham  v.  Eggleston 
(1873),  27  Mich.  324.  which  was  fol- 
lowed in  Byles  v.  Colier,  supra,  was 
one  in  which  the  defendant  con- 
tracted to  purchase  certain  lots  of 
lumber,  at  a  certain  price  per  thou- 
sand for  common  and  a  less  price  for 
culls.  The  plaintiff  and  defendant 
went  together  to  the  yard  where  the 
lumber  was  piled  and  identified  that 
which  was  to  b3  included  in  the  sale. 
But  the  relative  amounts  of  the  two 
grades  had  not  been  determined,  and 
the  contract  provided  no  method  for 
doing  it.  Before  delivery  the  lumber 
was  destroyed  by  a  forest  fire,  and 


429 


§  513.] 


LAW    OF    SALE. 


[BOOK    II. 


§518.  Presumption  not  conclusive. —  This  presump- 
tion, however,  that  the  title  does  not  pass  until  the  act  of 
weighing,  measuring,  testing  and  the  like  has  been  performed, 
is  not  conclusive;  and  it  readily  gives  way  before  evidence  of 
the  contrary  intention  of  the  parties.1 


the  plaintiff,  claiming  that  the  title 
had  passed,  sued  for  the  purchase 
price.  But  the  court  held  that  the 
title  evidently  had  not  passed,  since 
something  of  high  importance  re- 
mained to  be  done  by  the  vendor  to 
ascertain  the  price  to  be  paid  — 
something,  indeed,  as  to  which  there 
might  well  be,  and  in  fact  were, 
great  differences  of  opinion,  viz.,  the 
determination  of  the  precise  amount 
of  each  grade  of  lumber. 

Very  like  this  case  is  Miller  v.  Sea- 
man (1896).  176  Pa.  St.  291,  35  Atl.  R 
134.  Here  there  was  an  agreement 
made  by  the  seller,  who  resided  at 
Elmira,  N.  Y.,  with  the  buyer,  who 
lived  at  Williamsport,  Pa.,  for  the 
sale  of  all  the  lumber  in  eleven  piles 
on  the  land  of  a  third  person  at  Du 
Boistown,  Pa.,  at  a  certain  price  per 
thousand  feet  "  shipping  count,  f.  o.  b. 
cars  at  Williamsport,  to  be  loaded, 
inspected  and  measured,  as  ordered 
by  the  purchasers,  by "  a  person 
named,  to  be  paid  for  within  thirty 
days;  and  all  lumber  which  re- 
mained on  the  yard  at  a  certain  date 
was  then  to  be  inspected  and  meas- 
ured by  another  person  named,  and 
paid  for  at  a  different  rate.  After 
part  had  been  ordered,  inspected  and 
paid  for  as  agreed,  but  before  the 
date  named  when  all  should  be  in- 
spected, the  lumber  remaining  in 
the  yard  was  swept  away  by  a  flood 
and  lost.  The  action  was  for  the 
price  of  the  estimated  quantity  so 
lost.  It  was  held,  however,  that  the 
title  to    this    lumber  was    still    in 


the  seller,  and  that  title  passed  to 
the  buyer  only  as  fast  as  the  lumber 
was  ordered,  inspected,  measured 
and  delivered  f.  o.  b.  at  Williams- 
port. 

1  In  Straus  v.  Minzesheimer  (1875), 
78  111.  492,  it  is  said:  "  There  are  nu- 
merous most  respectable  authorities 
which  hold  that  a  contract  for  the 
sale  of  specific  goods,  or  of  goods 
identified,  where  something  remains 
to  be  done  to  the  property,  will  pass 
the  title  to  the  property  before  the 
act  is  done,  if  such  appears  by  the 
contract  to  have  been  the  intention 
of  the  parties.  In  consonance  with 
this  class  of  cases  this  court  held,  in 
Graff  v.  Fitch,  58  111.  373,  and  in  Shel- 
ton  v.  Franklin,  68  111.  333,  that  the 
title  to  personal  property  would  pass 
by  a  contract  of  sale,  where  such 
was  the  intention  of  the  parties,  al- 
though measuring  or  weighing  was 
to  be  had  at  a  subsequent  time,  in 
order  to  ascertain  the  amount  to  be 
paid." 

In  Riddle  v.  Varnum  (1838),  20  Pick. 
(Mass.)  280,  the  court  say:  "The  gen- 
eral doctrine  on  this  subject  is  un- 
doubtedly that  when  some  act  re- 
mains to  be  done  in  relation  to  the 
articles  which  are  the  subject  of  the 
sale,  as  that  of  weighing  or  measur- 
ing, and  there  is  no  evidence  tending 
to  show  an  intention  of  the  parties 
to  make  an  absolute  and  complete 
sale,  the  performance  of  such  act  is 
a  prerequisite  to  the  consummation 
of  the  contract;  and  until  it  is  per- 
formed the  property  does  not  pass  to 


430 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  519. 


519. 


Broader  rule  in  some  States. —  A  still  more 


liberal  rule  than  that  stated  in  the  preceding  section  may  well 
deserve  attention.  Tor  where  the  goods  are  definitely  ascer- 
tained, and  are  of  the  kind  that  the  seller  is  bound  to  receive, 
and  are  in  the  condition  in  which  he  is  to  accept  them,  so  that 
nothing  remains  but  to  ascertain  the  price,  no  satisfactory  rea- 
son is  apparent  why  the  title  should  not  pass  at  once,  unless  a 
contrary  intention  appears;  and  several  able  courts  have  so 
declared.1 


the  vendee.  But  in  the  case  of  sales 
where  the  property  to  be  sold  is  in  a 
state  ready  for  delivery,  and  the  pay- 
ment of  money,  or  giving  security 
therefor,  is  not  a  condition  precedent 
to  the  transfer,  it  may  well  be  the 
understanding  of  the  parties  that  the 
sale  is  perfected,  and  the  interest 
passes  immediately  to  the  vendee, 
although  the  weight  or  measure  of 
the  articles  sold  remains  yet  to  be 
ascertained.  Such  a  case  presents  a 
question  of  the  intention  of  the  par- 
ties to  the  contract.  The  party  af- 
firming the  sale  must  satisfy  the  jury 
that  it  was  intended  to  be  an  abso- 
lute transfer,  and  all  that  remained 
to  be  done  was  merely  for  the  pur- 
pose of  ascertaining  the  price  of  the 
articles  sold  at  the  rate  agreed  upon." 
See  also  Leonard  v.  Davis,  1  Black 
(U.  S.),  476. 

In  Kelsea  v.  Haines,  41  N.  H.  246, 
the  court  also  say:  "So  where  the 
process  of  ascertaining  the  quantity 
has  been  substantially  performed, 
the  title  passes,  although  a  trifling 
act  remains  to  be  done  in  order  to 
complete  the  enumeration,  especially 
if  the  vendee  is  in  possession,  and 
the  remaining  act  is  to  be  clone  by 
him.  Hill,  on  Sales,  148;  Tansley  v. 
Turner,  2  Scott,  238;  Tyler  v.  Strang, 
21  Barb.  (N.  Y.)  198;  Oliphant  v.  Ba- 
ker, 5  Den.  (N.  Y.)  379;  Shepherd  v. 


Pressey,  32  N.  H.  50;  Gilman  v.  Hill, 
36  N.  H.  311." 

iln  Cleveland  v.  Williams  (1887), 
29  Tex.  204, 94  Am.  Dec.  274,  it  is  said: 
"  It  is  certainly  correct,  as  laid  down 
in  the  books,  that  when  anything  re- 
mains to  be  done  by  the  seller,  such 
as  counting,  weighing  or  measuring, 
the  title  does  not  pass  when  either 
of  these  operations  is  necessary  in 
order  to  separate  the  goods  from  a 
larger  mass  of  which  they  form  a 
part;  but  when  the  entire  mass  is 
sold  and  must  be  measured  simply 
with  a  view  to  the  ascertainment  of 
its  price  for  the  purpose  of  a  settle- 
ment, the  better  opinion,  on  principle 
and  authority,  is  that  the  title  passes. 
By  keeping  the  distinction  between 
a  specific  and  an  indefinite  commod- 
ity in  view,  it  is  believed  that  most 
of  the  cases  upon  this  subject  can  be 
explained  and  their  apparent  conflict 
reconciled.  McComber  v.  Parker,  13 
Pick.  (Mass.)182;  Cunningham  v.  Ash- 
brook.  20  Mo.  560;  Scott  v.  Wells,  6 
Watts  &  S.  (Pa.)  368,  40  Am.  Dec.  568; 
Riddle  v.  Varnum,  20  Pick.  (Mass.) 
283;  Crofoot  v.  Bennett,  2  N.  Y.  260." 
In  the  case  last  named  ( Crofoot  v.  Ben- 
nett) it  is  said  that  "  if  the  goods  sold 
are  clearly  identified,  then,  although 
it  may  be  necessary  to  number,  weigh 
or  measure  them  in  order  to  ascer- 
tain what  would  be  the  price  of  the 


431 


520.] 


LAW   OF    SALE. 


[BOOK   II. 


§  520.  Nor  where  goods  are  yet  to  be  measured,  weighed  or 
tested  with  a  view  to  identification.— In  many  of  the  cases 
in  which  Lord  Blackburn's  rule  has  been  apparently  approved, 
the  question  was  not  confined  to  the  necessity  of  weighing, 
measuring  or  testing  for  the  sole  purpose  of  ascertaining  the 
price;  but  the  additional  element  of  identification  or  separa- 
tion from  a  larger  mass  was  involved.1  This  distinction  is  of 
importance,  though  it  is  frequently  ignored.  If  the  object 
sought  to  be  accomplished  by  the  weighing,  measuring,  testing 
and  the  like  is  the  identification  of  the  goods  to  which  the  con- 
tract is  to  apply  —  as  where  the  sale  is  to  be  of  all  of  the  timber 
of  a  certain  size,  all  of  the  hogs  of  a  certain  weight,  all  of  the 
wheat  of  a  certain  grade,  and  the  like,— there  is  then  presented 
a  case  of  the  class  to  be  considered  in  the  following  chapter 
where  the  goods  are  not  specific,  but  it  is  not  of  the  class  now 
under  consideration.     In  cases  of  that  kind  the  title  obviously 


whole  at  a  rate  agreed  upon  between 
the  parties,  the  title  will  pass."  Speak- 
ing of  this  case  in  Burrows  v.  Whit- 
aker  (1877),  71  N.  Y.  291,  27  Am.  R. 
42,  it  is  said:  "It  was  also  laid  down 
that  the  distinction  in  all  these  cases 
does  not  depend  so  much  upon  what 
is  done  as  upon  the  object  to  be  ef- 
fected. If  it  be  specification,  the 
property  is  not  changed;  if  merely  to 
ascertain  the  total  value  at  desig- 
nated rates,  the  change  of  title  is  ef- 
fected." To  like  effect:  Groat  v.  Gile, 
51  N.  Y.  431;  Kimberley  v.  Patchin, 
19  N.  Y.  330;  Bradley  v.  Wheeler,  44 
N.  Y.  495;  Sanger  v.  Waterbury,  116 
N.  Y.  371,  22  N.  E.  R.  404;  Blackwood 
v.  Cutting  Packing  Co.,  76  Cal.  212, 
18  Pac.  R.  248,  9  Am.  St.  R.  199;  Las- 
sing  v.  James,  107  Cal.  348,  40  Pac.  R. 
534;  Boaz  v.  Schneider,  69  Tex.  128, 
6  S.  W.  R.  402;  Ober  v.  Carson,  62 
Mo.  209.  See  ante,  §  496  and  cases 
cited;  also  Farmers'  Phosphate  Co. 
v.  Gill,  69  Md.  537, 16  Atl.  R  214,  9  Am. 
St.  R.  443,  1  L.  R.  A.  767. 


1  See,  for  example,  Rosenthal  v. 
Kahn  (1890),  19  Oreg.  571,  24  Pac.  R. 
989;  Davis  v.  Hill  (1826),  3  N.  H.  382; 
Out  water  v.  Dodge  (1827),  7  Cow.  85; 
Devane  v.  Fennell  (1841),  2  Ired. 
(N.  C.)  36;  Warren  v.  Buckminster 
(1852),  24  N.  EL  336;  Joyce  v.  Adams 
(1853),  8  N.  Y.  291;  Gilman  v.  Hill 
(1858).  36  N.  H.  311;  Robertson  v. 
Strickland  (1868),  28  Up.  Can.  Q.  B. 
221;  Abat  v.  Atkinson  (1869),  21  La. 
Ann.  414;  First  Nat.  Bank  v.  Crow- 
ley (1872),  24  Mich.  492;  Etahn  v. 
Fredericks  (1874),  30  Mich.  223,  18 
Am.  R.  119;  Pike  v.  Vaughn  (1876),  39 
Wis.  499:  Galloway  v.  Week  (1882), 
54  Wis.  604,  12  N.  W.  R.  10;  Hays  v. 
Pittsburg  Co.  (1888),  33  Fed.  R.  552; 
Blackwood  v.  Cutting  Packing  Co. 
(1888),  76  Cal.  212,  18  Pac.  R  248,  9 
Am.  St.  R.  199. 

The  following  cases  seem  to  adopt 
the  English  rule:  The  Elgee  Cotton 
Cases  (1874),  22  Wall.  180;  Kein  v. 
Tupper  (1873),  52  N.  Y.  550;  Jones  v. 
Pearce  (1869),  25  Ark.  545. 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  521. 


cannot  pass  until  the  goods  have  been  identified;  but  the  ques- 
tion with  which  the  present  discussion  began  was,  by  its  terms, 
whether  title  to  specific,  ascertained  goods,  not  actually  de- 
livered, can  pass  until  the  price  has  been  determined  by  the 
process  of  weighing,  measuring  or  testing  them.  Here  the  ob- 
ject to  be  effected  is  not  to  distinguish  the  goods,  for  that, 
ex  hypothesi,  has  been  already  done;  but  merely  to  ascertain 
their  total  value  at  designated  rates. 


►21. 


As  has  been  stated,  however,  the  two  questions 


are  often  presented  together,  and  the  courts,  in  dealing  with 
them,  have  applied  Lord  Blackburn's  rule  apparently  as  ap- 
plicable to  both.  If  something  like  weighing,  measuring,  test- 
ing and  the  like  is  to  be  done  to  identify  the  goods,  that  is  an 
additional  reason  why  the  title  does  not  at  present  pass,  and 
would  of  course  suffice  if  the  other  element  of  unsettled  price 
were  not  involved.1 


1  Thus  see  Joyce  v.  Adams  (1853),  8 
N.  Y.  291.  Here  plaintiffs  bought  of 
defendants  two  hundred  and  fifty- 
nine  bales  of  cotton.  Defendants  had 
it  in  store  in  three  parcels,  one  of  one 
hundred  bales,  and  one  of  sixty-four 
bales,  stored  at  296  Water  street,  and 
one  of  ninety-five  bales  stored  else- 
where. The  contract  called  for  one 
hundred  and  sixty-four  bales  de- 
scribed as  Charleston  and  sixty-four 
bales  described  as  Mobile,  to  be  paid 
for  at  the  rate  of  thirteen  and  a  half 
cents  per  pound,  delivered  within 
thirty  days.  The  cotton  stored  at 
296  Water  street  was  destroyed  by 
fire  before  delivery,  and  the  plaint- 
iffs brought  action  for  the  return  of 
$5  per  bale  which  they  had  advanced 
upon  it.  The  court  held  that  the 
title  had  not  passed  to  the  purchaser, 
and  in  the  course  of  the  opinion  said: 
*'  In  this  case  the  subject-matter  of 
the  contract  of  sale,  so  far  as  it  re- 
spected the   number  of  bales    and 


brands,  was  identified  by  it,  but  it 
did  not  call  for  the  cotton  stored  at 
296  Water  street.  Any  other  bales 
of  cotton  of  the  description  specified 
would  as  well  have  answered  the  ob- 
ligation of  the  sellers  with  the  buy- 
ers. And  besides,  the  cotton  was  to 
be  paid  for  at  thirteen  and  a  half 
cents  per  pound,  and  to  be  delivered 
by  the  sellers  within  or  at  the  expira- 
tion of  thirty  days  thereafter,  when 
the  balance  of  the  price  was  to  be 
paid.  The  weight  had  not  been  as- 
certained by  the  contract,  and  no 
mode  was  specified  in  which  it  was 
to  be  ascertained;  but  it  was  neces- 
sary that  it  should  be  before  the  price 
could  be  computed.  .  .  .  The  con- 
tract, from  its  nature  and  terms,  was 
clearly  and  wholly  executory  on  the 
part  of  the  sellers,  leaving  the  title  of 
the  cotton  in  them,  to  be  thereafter 
passed  to  the  buyers,  on  the  perform- 
ance of  certain  things  by  them;  and 
until  these  were  performed  the  risk 


28 


433 


§§  522,  523.]  law  of  sale.  [book  ii. 

§  522.  Nor  where  goods  are  yet  to  be  measured,  weighed 
or  tested  to  ascertain  whether  they  are  the  kind  or  quality 
of  goods  the  buyer  is  to  accept. —  There  are  still  other  cases, 
not  often  clearly  distinguished,  in  which  the  weighing,  meas- 
uring, testing1  and  the  like  is  to  be  done  neither  to  ascertain 
the  price  nor  the  identity  of  the  goods  alone,  but  also  to  deter- 
mine whether  the  particular  goods  in  question,  apparently  of 
the  kind  agreed  upon,  are  really  of  the  kind  or  quality  which 
the  buyer  is  bound  to  accept.  Thus,  though  the  parties  are 
contracting  with  reference  to  specific  chattels,  for  example  a 
number  of  bales  of  cotton,  but,  by  the  contract,  the  cotton  is 
thereafter  to  be  sampled  by  both  parties  to  ascertain  if  it  con- 
forms to  a  sample  which  was  the  basis  of  the  dealing,  the  title 
will  not  pass  until  that  act  is  done ;  and  the  fact  that  the  cot- 
ton is  yet  to  be  weighed  in  order  to  ascertain  the  price  fur- 
nishes simply  another  reason  leading  to  the  same  result.1 

§  523.  .  The  same  result  would  ensue  where  a  crop  of 

grain  is  yet  to  be  harvested  to  prepare  it  for  delivery;  to  be 
brought  to  a  certain  place  to  be  weighed  to  ascertain  the 

of  it  remained  with  them."  In  Smart  the  seller  to  the  mill  of  the  Cocheco 

v.  Batchelder  (1876),  57  N.   H.   140,  Company  in  Dover.      Further,   the 

the  defendant  contracted  to  sell  to  price  was  so  much  per  thousand,  and 

one  Waldron  all  the  merchantable  the  quantity  had  not  been    ascer- 

square-edged  boards  at  his  mill,  at  a  tained.     This    brings    the    case  far 

fixed  price  per  thousand.    The  quan-  within  the  authorities.   When  goods 

tity  and  quality  were  not  ascertained,  are  sold  by  number,  weight  or  meas- 

They  were  to  be  delivered  at  a  cer-  ure,  the  sale  is  incomplete  until  the 

tain  place  to  be  surveyed.    Before  specified  property  has  been  separated 

anything  was  done  with  them  they  and  identified." 

were  attached  by  creditors  of  Wal-  1  Kein  v.  Tupper  (1873),  52  N.  Y.  550. 
dron.  The  court,  by  Ladd,  J.,  said:  Here  the  court  said,  per  Church, 
*  I  think  the  property  in  the  boards  C.  J.:  "Assuming  that  this  was  a 
had  not  passed  to  Waldron  at  the  sale  of  a  quantity  of  specific  cotton, 
time  of  the  attachment.  It  was  only  which  I  think  we  may  do,  and  which 
the  merchantable  boards  in  the  pile  is  the  most  favorable  view  for  the 
that  were  to  be  taken  by  him.  One  plaintiffs  (the  sellers),  yet,  as  the  cot- 
act  to  be  done,  then,  before  delivery,  ton  was  to  be  weighed  by  the  vend- 
was  the  selection  and  separation  of  ors  to  ascertain  the  quantity,  and 
the  merchantable  boards  from  the  sampled  by  both  parties  to  ascertain 
rest;  they  were  to  be  surveyed.  Then  the  quality,  no  title  would  pass  until 
they  were  also  to  be  transported  by  these  acts  were  done." 

434 


•CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  523. 


price;  and  to  be  "sacked  in  good  merchantable  sacks,"  in 
order  to  make  it  the  kind  of  commodity  which  the  buyer  is 
bound  to  accept.1 

needed  them,  upon  the  credit  of  the 
logs.  The  logs  were  delivered,  but 
they  were  not  scaled,  the  contract 
being  silent  as  to  when,  where  or  by 
whom  the  scaling  should  be  done, 
in  order  to  determine  the  price.  The 
court  held  thafe  the  parties  did  not 
intend  there  should  be  a  delivery, 
and  the  title  did  not  pass  until  the 
logs  were  inspected  and  scaled.  "  We 
do  not  suppose,"  say  the  court,  "  that 
the  plaintiff  was  bound  to  accept  all 
the  logs  which  McDonald  might  de- 
posit at  the  point  designated,  if  any 
were  unfit  for  use."  Gilman  v.  Hill 
(1858),  36  N.  H.  311.  Here  the  plaint- 
iffs agreed  to  buy  all  the  pelts  that 
a  certain  butcher  should  take  off 
between  July  and  October,  at  fifty 
cents  each,  and  they  might  take 
them  from  time  to  time  as  they 
should  become  dry.  Eighty  pelts 
were  counted  over  by  the  parties  and 
laid  aside.  Subsequently  thirteen 
more  were  taken  off,  placed  upon  the 
eighty,  and  the  whole  lot  was  levied 
upon  as  the  property  of  the  butcher. 
The  court  held  that  the  eighty  were 
clearly  the  property  of  the  plaintiffs, 
but  that  the  thirteen  had  not  been 
actually  accepted,  as  the  purchasers 
had  not  exercised  their  option  to  re- 
ceive or  reject  the  goods.  Devane 
v.  Fennell  (1841),  2  Ired.  (N.  C.)  36. 
The  plaintiff  here  agreed  to  sell  a 
certain  raft  of  timber,  which  was  to 
be  put  in  the  purchaser's  timber  pen, 
inspected  and  measured.  It  was  de- 
livered in  accordance  with  the  agree- 
ment, but  before  inspection  was 
taken  away.  It  was  held  that  the 
title  was  still  in  the  plaintiff,  since 
the  parties  could  not  have  intended 


1  Hamilton  v.  Gordon  (1892),  22 
Oreg.  557,  30  Pac.  R.  495.  See  also 
Outwater  v.  Dodge  (1827),  7  Cow. 
(N.  Y.)  85.  Here  the  defendants  con- 
tracted to  buy  a  quantity  of  fish  that 
the  plaintiff  had,  at  a  fixed  price  per 
barrel,  the  defendants  to  pay  for  in- 
spection. If  they  were  delivered  at 
a  certain  dock  on  Long  Island,  de- 
fendants would  not  require  plaintiff 
to  make  up  the  wantage,  as  it  was 
termed,  on  the  inspection  and  re- 
packing; otherwise  he  was  to  do  so. 
Plaintiff  elected  to  deliver  them  on 
the  Long  Island  dock,  and  did  so  de- 
liver them,  but  there  was  no  one 
there  to  receive  them.  Before  the 
inspector  began  his  work  one  of  the 
defendants  came  over  to  the  dock 
and  asked  him  to  tell  plaintiff  that 
the  fish  were  inferior  and  would  not 
be  accepted,  but  the  inspector  was 
not  told  to  desist  from  the  inspec- 
tion, and  he  accordingly  completed 
it.  The  court  held  that  it  was  evi- 
dent the  parties  intended  the  inspec- 
tion to  be  a  condition  precedent  to 
the  passing  of  the  title,  for  the  quan- 
tity was  altogether  uncertain  until 
then.  More  or  less  might  be  con- 
demned. The  very  agreement  that 
they  should  be  inspected  implies 
that  if  they  were  not  of  a  quality 
which  would  pass  inspection  the  de- 
fendants were  not  obliged  to  receive 
them.  Pike  v.  Vaughn  (1876),  39  Wis. 
499.  Here  there  was  a  contract  for 
the  sale  of  a  quantity  of  logs  which 
the  vendor  was  to  cut  and  deliver  at 
a  specified  place.  While  the  vendor 
should  be  engaged  in  getting  out 
the  logs  the  vendee  was  to  let  him 
have  goods   and    provisions    as   he 


435 


§  524.] 


LAW    OF    SALE. 


[iiOOK    II. 


§  524.  By  whom  weighing,  etc.,  to  be  done.— The  act  of 

weighing,  counting  and  the  like  is  usually  to  be  performed  by 
the  seller,  and  the  English  decisions  and  statute  have  confined 
the  rule  to  such  cases;  *  but  this  is  not  generally  deemed  mate- 
rial, and  the  contract  may  provide,  expressly  or  impliedly,  that 
it  shall  be  done  by  the  buyer.  In  such  a  case  the  title  pre- 
sumptively will  not  pass  until  he  has  performed  it,  especially 
where  the  sale  is  to  be  for  cash ; 2  but  this  presumption,  like  the 
other,  yields  to  the  contrary  intention  of  the  parties.3 


an  absolute  delivery  while  the  tim- 
ber had  still  to  be  inspected  and 
measured. 

1  See  the  English  statute  before  re- 
ferred to.    See  also  the  discussion  in 


Turley  v.  Bates  (1863).  2  H.  &  C.  200, 
33  L.  Jour.  (Ex.)  43.     But  that 'the  in- 
tention controls,   see   Martineau  v. 
Kitching  (1872),  L.  R.  7  Q.  B.  436. 
2  In  Hoffman  v.  Culver  (1880),  7  I1L 


3  The  case  of  Cunningham  v.  Ash- 
brook  (1855),  20  Mo.  553,  is  strikingly 
like  that  of  Ward  v.  Shaw,  supra. 
Here  plaintiff  had  sold  his  hogs  to 
defendant  at  $4.15  per  cwt.,  net 
weight,  to  be  delivered  at  the  slaugh- 
ter-house of  defendants,  and  to  be 
killed  and  weighed  by  the  buyers. 
After  killing,  but  before  weighing, 
they  were  destroyed  by  accidental 
fire.  Plaintiff  sued  to  recover  the 
price,  and  at  the  trial  it  was  held 
that  he  could  not  recover,  as  the 
title  was  not  to  pass  before  the  price 
had  been  ascertained  by  weighing. 
This  was  reversed,  the  supreme  court 
holding  that  it  was  a  question  of  in- 
tention for  the  jury.  There  is  dis- 
cussion in  the  case  of  the  general 
principles  and  an  opinion  expressed 
that  the  general  rule  applies  only 
where  identification  is  necessary,  but 
the  effect  of  the  decision  is  found  in 
the  closing  lines  of  the  opinion:  "We 
repeat  what  we  have  before  said,  it 
is  a  question  for  the  jury.  If  the  de- 
livery were  for  the  purpose  of  pass- 
ing the  property  it  had  that  effect, 
although  the  price  was  to  be  after- 


wards ascertained  and  paid  accord- 
ing to  the  net  weight,  and  there  is 
no  rule  of  law  that,  under  such  cir- 
cumstances, the  presumption  arising 
from  the  delivery  is  met  and  repelled, 
and  that  other  evidence  becomes 
necessary  to  make  out  a  prima  facie 
case  of  present  sale.  The  seller  has 
a  right,  notwithstanding  the  bargain, 
to  retain  his  property  till  he  is  paid, 
unless  he  agrees  to  allow  the  pur- 
chaser a  credit  (the  bargain  for  an 
immediate  transfer  of  property  im- 
plying a  present  payment  of  the 
price),  and  hence,  when  there  is  no 
understanding  as  to  the  time  of  pay- 
ment, other  than  what  is  implied  in 
the  postponement  of  it,  until  the 
quantity  of  the  thing  sold  is  ascer- 
tained in  the  manner  indicated  by 
the  contract,  this  circumstance  is 
certainly  entitled  to  consideration 
with  the  jury  in  determining  the 
character  of  the  delivery,  which,  if 
intended  to  pass  the  thing  in  prop- 
erty, deprives  the  seller  of  his  secu- 
rity upon  it  for  the  price,  at  the  same 
time  that  it  throws  upon  the  buyer 
the  future  risk." 


436 


OH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  525. 


§  525.  How  where  the  whole  body  of  goods  is  delivered  to 

the  buyer. —  Where,  however,  before  weighing,  counting  or 
measuring,  the  whole  body  of  the  goods  is  delivered  to  the 

could  not  be  done  before  the  quan- 
tity was  ascertained  by  weighing." 
And  also:  "It  is  the  settled  law  of 
England,  and  it  ought  to  be  the  law 
here,  that,  where  goods  are  in  the  pos- 
session of  a  third  party  as  bailee  or 
agent  of  the  vendors,  if  the  vendors 
make  a  contract  of  sale  of  them  while 
so  situated  for  cash,  and  the  vendee 
has  not  paid  for  them,  the  giving  by 
the  vendor  to  the  vendee  of  a  delivery 
order  addressed  to  such  bailee  or 
agent,  directing  him  to  deliver  the 
goods  to  the  vendee,  but  which  is  not 
presented  to  such  bailee  or  agent  and 
assented  to  by  him,  will  have  no  ef- 
fect in  changing  the  property  in  such 
goods  from  the  vendor  to  the  vendee. 
The  property  and  possession  will  be 
regarded  as  still  remaining  in  the 
vendor,  for  the  reason  that  until  such 
bailee  or  agent  attorn  to  the  vendee 
to  whom  such  order  is  given,  he  will 
be  regarded  as  remaining  the  agent 
of  the  vendor,  and  his  possession  as 
that  of  the  vendor.  Bentall  v.  Burn, 
3  B.  &  C.  423;  Farina  v.  Home,  16 
Mees.  &  W.  119;  McEwan  v.  Smith, 
2  H.  of  L.  Cas.  309;  Ben],  on  Sales  (2d 
ed.),  132,  133." 

In  Ward  v.  Shaw  (1831),  7  Wend. 
(N.  Y.)  404,  the  contract  was  for  the 
sale  of  two  oxen  which  the  vendee 
was  to  kill,  prepare  for  market,  then 
weigh  and  pay  for  at  a  given  price 
per  cwt.  dressed.  The  vendee  took 
the  cattle  for  this  purpose,  but  on  the 
same  day  they  were  levied  upon  by 
his  creditors.  Held,  that  the  title  had 
not  passed  to  him.  Said  Savage,  C.  J., 
after  referring  to  the  English  cases: 
"The  rule  laid  down  in  Hanson  v. 
Meyer,  6  East,  614,  is  that  the  prop- 


App.  450,  it  appeared  that  plaintiffs 
were  the  owners  of  a  carload  of 
wheat  standing  on  the  track  at  Chi- 
•cago.  They  entered  into  a  contract 
to  sell  the  wheat  for  cash  to  one 
Martin,  who  was  to  ascertain  the 
number  of  bushels  and  pay  a  fixed 
price  per  bushel  as  soon  as  weighed 
out.  Plaintiffs  gave  to  Martin  an 
order  on  the  railroad  company  to  de- 
liver to  him  the  car.  Without  pre- 
senting this  order,  or  obtaining  de- 
livery of  the  car  with  the  assent 
of  the  railroad  company,  Martin 
weighed  out  two  wagon  loads  of 
wheat,  transferred  it  to  another  car 
and  there  mixed  it  with  other  grain 
of  his  own,  without  plaintiffs'  con- 
sent and  without  paying  for  it.  It 
was  there  seized  by  creditors  of  Mar- 
tin before  the  remainder  of  the  wheat 
had  been  weighed  out.  Held,  that 
plaintiffs'  title  had  not  been  divested. 
Said  McAllister,  P.  J.:  "  We  take  it 
to  be  clear  law  that  when  in  a  con- 
tract of  sale  of  the  contents  of  a  car 
or  bin,  it  being  grain,  but  the  quan- 
tity of  which  is  unknown,  and  the 
sale  is  for  cash,  to  be  paid  as  soon  as 
the  grain  can  be  weighed,  which 
weighing  is  necessary  in  order  to 
ascertain  the  price  to  be  paid  by  the 
buyer,  and  there  is  no  provision  as  to 
deliver}7,  the  property  in  that  case, 
the  grain,  does  not  pass  to  the  buyer 
by  the  bargain,  even  though  the 
weighing  is  to  be  done  by  him  and 
there  was  nothing  to  be  done  by  the 
seller  to  ascertain  the  identity  or  the 
quantity  or  quality  of  the  commod- 
ity. The  payment  of  the  price  is  a 
condition  preliminary  to  the  prop- 
erty passing  to  the  buyer;  and  that 


437 


§  525.] 


LAW    OF    SALE. 


[BOOK    II. 


buyer,  and  the  sale  is  not  for  cash  upon  delivery,  this  is  very 
strong  evidence  that  the  property  is  to  vest  in  him  at  once,  leav- 
ing the  price  to  be  afterwards  determined,1  but  it  is  obviously 
very  weak  evidence  where  the  sale  is  for  cash  upon  delivery.* 


erty  does  not  pass  when  anything 
remains  to  be  done  by  the  vendor; 
when  the  thing  to  be  done  is  neces- 
sary to  ascei'tain  the  price,  and  the 
sale  is  for  cash,  it  can  make  no  dif- 
ference whether  that  thing  is  to  be 
done  by  vendor  or  vendee.  The  prop- 
erty is  not  to  pass  till  payment;  the 
price  must  precede  the  payment,  and 
until  the  price  is  ascertained,  pay- 
ment cannot  be  made  or  waived  un- 
less by  express  terms;  the  acts  of  the 
vendor  cannot,  before  that  time,  be 
construed  into  a  waiver.'' 

In  Andrew  v.  Dieterich  (1835),  14 
Wend.  (N.  Y.)  31,  plaintiff  had  sold 
carpets  to  one  Simmons  to  furnish  a 
house  to  be  paid  for  in  cash.  Plaint- 
iff sent  the  carpets  to  the  house  in  the 
roll  so  that  the  necessary  amounts 
might  be  ascertained  and  cut  off, 
when  the  balance  was  to  be  returned 
and  the  amount  used  was  to  be  ascer- 
tained and  paid  for.  Simmons  cut 
off  and  laid  what  was  necessary  to 
cover  his  floors,  but,  before  paying 
for  it,  pledged  it  to  defendant  for  a 
loan  and  absconded.  Held,  that 
plaintiff's  title  had  not  been  divested, 
Ward  v.  Shaw,  supra,  being  relied 
upon.  See  also  Ballantyne  v.  Apple- 
ton  (1890),  82  Me.  570,  20  Atl.  R.  235, 
and  Pinkham  v.  Applet  on  (1890),  82 
Me.  574,  20  Atl.  R.  237,  cited  post, 
under  subd.  Ill  of  this  chapter. 

i  In  Macomber  v.  Parker  (1832),  13 
Pick.  (Mass.)  175,  it  is  said:  "The 
general  principle  is,  that  where  any 
operation   of  weight,  measurement, 


counting,  or  the  like,  remains  to  be 
performed  in  order  to  ascertain  the 
price,  the  quantity,  or  the  particular 
commodity  to  be  delivered,  and  to 
put  it  in  a  deliverable  state,  the 
contract  is  incomplete  until  such 
operation  is  performed.  Brown  on 
Sales,  44.  But  where  the  goods  or 
commodities  are  actually  delivered, 
that  shows  the  intent  of  the  parties 
to  complete  the  sale  by  the  delivery, 
and  the  weighing  or  measuring  or 
counting  afterwards  would  not  be 
considered  as  any  part  of  the  contract 
of  sale,  but  would  be  taken  to  refer 
to  the  adjustment  of  the  final  set- 
tlement as  to  price.  The  sale  would 
be  complete  as  a  sale  upon  credit 
before  the  actual  payment  of  the 
price.  Nothing  can  be  found  in  any 
of  the  numerous  cases  on  this  point 
which  militates  against  thisposition." 
In  Sedgwick  v.  Cottingham  (1880), 
54  Iowa,  512,  6  N.  W.  R.  738,  there  was 
a  sale  of  a  carload  of  wheat  which  the 
plaintiff  was  to  ship  to  a  certain  point, 
where  it  was  to  be  taken  from  the  car 
by  the  defendant,  hauled  to  his  mill, 
and  paid  for  upon  being  weighed  by 
him.  The  plaintiff  shipped  the  car 
as  agreed,  but  before  weighing  the 
wheat  was  accidentally  burned.  Held, 
that  the  title  had  passed.  Said  the 
court:  "The  weighing  is  not  a  piv- 
otal matter.  It  was  to  be  done  by  the- 
defendant  after  he  had  received  it 
into  his  actual  custody,  and  after  it 
had  been  delivered  at  the  place  fixed 
by  the  contract.     A  careful  consid- 


538  et  seq. 
438 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  526. 

§  526.  .  In  a  case x  of  the  former  kind,  where  the  con- 
tract was  for  the  sale  of  lumber  which  had  been  placed  under 
the  charge  of  the  purchaser's  agent,  the  court  said:  "The 
whole  property  being  identified  and  sold  at  a  fixed  price  per 


eration  of  the  third  finding  (of  the 
facts  as  above  stated)  will  demon- 
strate, we  think,  that  the  weighing 
has  reference  only  to  the  time  of  pay- 
ment, and  whether  there  had  been  a 
delivery  or  not  is  in  no  manner  con- 
trolled or  affected  thereby." 

In  Scott  v.  Wells  (1843),  6  W.  &  S. 
(Pa.)  357,  40  Am.  Dec.  568,  there 
had  been  a  contract  for  the  sale  of  a 
raft  of  timber  at  a  given  rate  per 
thousand  feet,  and  the  raft  had  been 
delivered  to  the  purchaser,  though 
the  number  of  feet  had  not  been  as- 
certained. Held,  that  the  title  had 
passed.  Said  Gibson,  C.  J. :  "  The  de- 
livery was  unconditional,  pursuant 
to  the  contract,  and  complete;  why, 
then,  did  it  not  pass  the  property  and 
put  it  at  the  purchaser's  risk?  Be- 
cause, say  the  purchaser's  counsel, 
the  number  of  feet  contained,  or  the 
sum  total  of  the  price,  was  not  set- 
tled by  the  contract,  and  the  conse- 
quence attempted  is.that  the  sale  was 
imperfect  in  its  members.  Had  there 
been  no  delivery,  or  a  conditional 
one,  the  purchaser  would  not,  per- 
haps, have  been  bound  till  the  num- 
ber of  feet  and  entire  price  had  been 
ascertained;  but  the  parties  evinced, 
by  taking  the  last  step,  that  nothing 
remained  to  be  done  in  order  to  per- 
fect the  contract." 

In  Haxall  v.  Willis  (1859),  15  Gratt. 
(Va.)  434,  a  crop  of  wheat  not  yet 
ready  for  delivery  was  contracted  to 
be  sold  by  sample,  the  seller  to  de- 


liver it  to  the  buyer,  at  a  certain  sta- 
tion, from  which  it  was  to  be  taken 
to  Richmond  at  the  seller's  expense, 
and  at  Richmond  it  was  to  be  taken 
by  the  purchaser  at  his  own  expense 
to  his    own  mill  and  there   to   be 
weighed  and  tested  by  the  sample, 
and,  when  thus  weighed  and  tested, 
to  be  paid  for.     The  wheat  reached 
Richmond,  and  most  of  it  had  been 
taken  to  the  mill  by  the  purchaser, 
but  a  part  was  consumed   by  fire 
while  in  the  station  at  Richmond  be- 
fore it  could  be  removed.     Held,  that 
the  title  to  all  had  passed  to  the  pur- 
chaser, who  must  therefore  stand  the 
loss.    The  cases  are  quite  fully  re- 
viewed, and  Daniel,  J.,  says:  "There 
is,  I  think,  a  decided  preponderance 
of  authority  in  favor  of  the  proposi- 
tion that  where  the  subject-matter 
of  the  contract  has  not  only  been 
completely  ascertained  and  identi- 
fied, but  actually  delivered,  the  mere 
fact  that  the  weighing,  counting  or 
measuring  is  yet  to  be  done  by  the 
buyer,  in  order  simply  to  ascertain 
the  aggregate  sum  of  money  which 
he  is  to  pay  as  the  price,  does  not  of 
itself  show  such  a  defect  in  the  trans- 
fer of  the  title  as  will  prevent  the 
risk  of  loss  from  being  cast  on  the 
buyer.     Selwyn's  Nisi  Prius,  1054:  3 
Kent's  Com.  675, 676;  Sumner  v.  Ham- 
let. 12  Pick.  (Mass.)  76;  Macomber  v. 
Parker,  13  Pick.  176;  Riddle  v.  Var- 
nura.  20  Pick.  280;  Morgan  v.  Perkins, 
1  Jones'  (N.  C.)  L.171 ;  Tyler  v.  Strang, 


1  Adams  Mining  Co.  v.  Senter,  26  Mich.  73. 
Keystone  Iron  Co.,  36  Mich.  51. 

439 


To  same  effect,  Colwell  v. 


§  527.] 


LAW    OF    SALE. 


[book  IL 


foot,  the  process  of  ascertaining  the  amount  was  not  essential 
to  passing  the  title,  as  it  might  have  been  if  less  than  the  whole 
amount  delivered  was  to  be  sold  and  separated  by  measure- 
ment. In  that  case  the  measurement  might  be  necessary  to 
fix  the  identity  of  the  property  sold.  But  where  all  is  sold, 
no  such  process  is  needed  to  pass  title.  The  ascertainment  of 
the  price  was  a  mere  mathematical  computation,  involving  no 
further  action  to  bring  the  minds  of  the  parties  together." 

e  507,  1  And  in  another  case  l  of  the  like  kind,  the 

court  lay  down  the  rule  as  follows:  "Where  anything  re- 
mains to  be  done  between  the  seller  and  purchaser  before  the 


21  Barb.  (N.  Y.)  198;  Crofoot  v.  Ben- 
nett. 2  Comst.  (N.  Y.)  258;  Page  v. 
Carpenter,  10  N.  H.  77;  Cunning- 
ham v.  Ashbrook.  20  Mo.  555."  The 
court  likens  the  case  to  that  of  Cun- 
ningham v.  Ashbrook,  siipra,  where 
an  entire  drove  of  hogs  had  been 
sold  at  so  much  per  hundred  weight, 
net  weight,  to  be  delivered  at  the 
slaughter-house  of  the  buyer,  who 
was  to  kill  and  weigh  them.  The  hogs 
were  delivered  and  slaughtered,  and 
the  seller  was  notified  that  he  might 
call  the  next  day  at  the  packing- 
house of  the  buyer,  see  the  hogs 
weighed,  and  get  his  pay.  That 
night  the  slaughter-house  was  burned 
and  the  hogs  destroyed.  Held,  that 
the  title  had  passed  and  the  seller 
could  recover  the  price. 

In  Burrows  v.  Whitaker  (1877),  71 
N.  Y.  291,  27  Am.  R.  42,  it  appeared 
that  defendant  agreed  to  buy  of 
plaintiff  all  the  lumber  which  he 
should  deliver  at  a  specified  place  on 
the  Delaware  river,  before  a  certain 
time;  and  prices  were  agreed  on  for 
the  good  and  for  the  culled.  De- 
fendant was  to  cull  and  pile,  and  the 
lumber  was  to  be  counted  on  the 
bank  or  estimated  in  the  raft  at  that 


place.  The  delivery  was  commenced, 
and  a  portion  was  culled  and  piled, 
but  before  it  could  be  counted  or  es- 
timated it  was  carried  away  by  a 
freshet.  In  an  action  to  recover  the 
contract  price  for  the  amount  so  de- 
livered, held,  that  the  evidence  sus- 
tained a  finding  of  delivery  and 
acceptance,  and  that  delivery  of  the 
whole  amount  contracted  for  was 
not  necessary  to  pass  title  to  that 
delivered. 

i  Ober  v.  Carson  (1876),  62  Mo.  209, 
citing  Cunningham  v.  Ashbrook,  20 
Mo.  553;  Glasgow  v.  Nicholson,  25 
Mo.  29;  Bass  v.  Walsh,  39  Mo.  192; 
Williams  v.  Gray,  39  Mo.  201. 

The  rule  that  title  to  goods  does 
not  pass  so  long  as  anything  remains 
to  be  done  to  ascertain  the  quantity 
and  price  of  the  article  sold,  does  not 
apply  where  there  is  a  delivery  with 
the  intention  of  passing  title.  Cham- 
blee  v.  McKenzie  (1876),  31  Ark.  155; 
O'Keefe  v.  Kellogg  (1854),  15  111.  347; 
Dennis  v.  Alexander  (1846),  3  Pa.  St. 
50;  Seckel  v.  Scott  (1872),  66  111.  106; 
Foster  v.  Magill  (1886),  119  111.  75,  8 
N.  E.  R.  771;  Crofoot  v.  Bennett 
(1849),  2  N.  Y.  258;  Odell  v.  Railroad 
Co.  (1871),  109  Mass.  50;  Cushman  v. 


440 


OH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§   527. 

goods  are  to  be  delivered,  as  separating  the  specific  quantity 
sold  from  a  larger  mass,  or  identifying  them  when  they  are 
mixed  with  others,  a  present  right  of  property  does  not  attach 
in  the  purchaser.  But  when  a  mere  operation  of  weight, 
measurement,  counting,  or  the  like,  remains  to  be  performed 
after  the  goods  are  actually  delivered,  and  it  is  shown  that 
it  was  the  intention  of  the  parties  to  complete  the  sale  by  de- 
livery, such  weighing,  measuring  or  counting  afterwards  will 
not  be  regarded  as  a  part  of  the  contract  of  sale,  but  will  be 
considered  as  referring  to  adjustment  on  a  final  settlement. 
The  question  of  transfer  to,  and  vesting  title  in,  the  purchaser 
always  involves  an  inquiry  into  the  intention  of  the  contract- 
ing parties;  and  it  is  to  be  ascertained  whether  their  negotia- 
tions and  acts  show  an  intention  on  the  part  of  the  seller  to 
relinquish  all  further  claim  as  owner,  and  on  the  part  of  the 
buyer  to  assume  such  control  with  all  liabilities." 


Holyoke  (1852),  34  Me.  289;  Upson  v. 
Holmes  (1883),  51  Conn.  500;  Sedgwick 
v.  Cottingham  (1880 1,  54  Iowa,  512, 
6N.W.R.  738 ;  Boswell  v.  Green  ( 1 856 ). 
25  N.  J.  L.  390;  King  v.  Jarman  (1879), 
35  Ark.  190,  37  Am.  R,  11;  Morrow  v. 
Eeed  (1872),  30  Wis.  81. 

Where  a  quantity  of  hemlock  bark 
had  been  sold,  delivered  and  ac- 
cepted, and  the  vendee  had  assumed 
control  of  it  as  owner,  it  was  held  that 
the  title  vested  in  him  at  once,  al- 
though the  bark  had  not  been  meas- 
ured, and  that  a  loss  of  it  by  fire  fell 
upon  him.  Baldwin  v.  Doubleday 
<1886),  59  Vt.  7,  8  Atl.  R.  576. 

So  where  wood  had  been  the  sub- 
ject of  a  contract  of  sale,  the  wood 
to  be  carried  by  the  vendee  to  a  cer- 
tain place  and  there  piled,  measured 
and  paid  for,  and  the  wood  after  de- 
livery to  the  vendee  was  lost  before 
measurement,  it  was  held  that  the 
title  had  passed.    Gill  v.  Benjamin,  64 


Wis.  362,  54  Ani.R.  619.  25  N.W.  R.445. 
Said  the  court:  "Was  such  piling  and 
measuring  a  condition  precedent  to 
the  vesting  of  the  title  thereof  in  the 
defendant?  Where  the  manifest  in- 
tention of  the  parties  is  to  transfer 
the  title  the  sale  may  be  complete, 
notwithstanding  the  property  is  yet 
to  be  measured  and  the  amount  of 
the  price  yet  to  be  ascertained. 
Sewell  v.  Eaton,  6  Wis.  490,  70  Am. 
Dec.  471;  McConnell  v.  Hughes,  29 
Wis.  537;  Morrow  v.  Campbell,  30 
Wis.  90;  Fletcher  v.  Ingram,  46  Wis. 
191.  So  held  where  by  the  agree- 
ment the  vendee  was  to  have  the 
title  to  saw-logs  as  soon  as  the  vendor 
deposited  them  in  a  certain  place. 
Morrow  v.  Reed,  30  Wis.  81.  These 
principles  are  fully  recognized  and 
sanctioned  in  Pike  v.  Vaughn,  39 
Wis.  505.  relied  upon  by  counsel  for 
the  defendant." 


441 


528,  529.]  law  of  sale.  [book  ii. 

528.  What  delivery  sufficient  in  such  cases.— The 


delivery  which  will  suffice  to  satisfy  the  preceding  rule  need 
not,  in  all  cases,  be  an  actual,  physical  delivery  into  the  man- 
ual possession  of  the  purchaser.  There  may  here,  as  in  other 
cases,  be  a  constructive  delivery,  as  where  goods  which  are  so 
ponderous  or  bulky  as  not  to  be  capable  of  manual  delivery 
are  put  under  the  actual  control  of  the  buyer,  or  where  there 
is  delivered  to  him  the  key  of  the  warehouse  in  which  they  are 
contained.  Here,  again,  the  intention  of  the  parties  governs, 
and  if,  from  all  the  circumstances,  it  is  evident  that  they  treated 
the  goods  as  delivered,  the  title  may  pass  within  the  rule  of 
the  previous  section,  even  though  something  is  yet  to  be  done 
to  ascertain  the  quantity  or  quality  which  is  to  determine  the 
amount  to  be  paid.1 

§  529.  How  when  the  contemplated  means  of  ascer- 
taining quantity,  etc.,  fails.— Where  the  whole  body  of  the 
goods  is  thus  delivered  to  the  purchaser,  with  the  intention  of 

i  Morrow  v.  Reed  (1872),  30  Wis.  81.  when  intrusted  to  the  vendee,  is  a 

In  King  v.  Jarman  (1879),  35  Ark.  matter  of  confidence  not  affecting 

190,  37  Am.  R.  11,  cotton  contracted  the  sale." 

to  be  sold  was  lying  in  a  warehouse,  So  in  Bethel  St.  Mill  Co.  v.  Brown 
and  the  seller  gave  the  purchaser  an  (1869),  57  Me.  9,  it  is  said:  "The  law 
order  on  the  warehouseman  for  it.  regulating  the  delivery  of  property 
Said  the  court:  "Where  the  minds  upon  a  sale  accommodates  itself  to 
of  the  parties  have  assented  to  the  the  necessities  of  the  business  and 
present  purchase  and  sale  of  a  spe-  the  nature  of  the  property,  making  a 
cific  chattel,  which  may  be  clearly  symbolical  delivery  sufficient  where 
identified  and  separated  from  other  nothing  but  a  constructive  posses- 
property,  and  the  sale  be  depondent  sion  can  ordinarily  be  had,  and  by 
on  no  conditions  or  contingencies,  no  means  overlooking  the  possibility 
and  such  possession  be  given  as  the  that  the  merchandise  sold  may  re- 
nature  of  the  subject  and  the  situa-  main  in  possession  of  the  seller  for 
tiou  of  the  parties  with  regard  thereto  certain  specific  purposes,  among 
'will  permit  of,  and  the  vendor  has  which  are  transportation  and  deliv- 
done  all  that  is  required  of  him  with  ery  at  another  place,  where  the  prop- 
respect  to  the  property,  the  title  will  erty  in  it  has  actually  passed  from 
pass.  And  this  will  be  so  notwith-  him  and  vested  in  the  purchaser, 
standing  something  may  be  still  without  affecting  the  validity  of  the 
necessary  on  the  part  of  the  vendee  sale.  Boynton  v.  Veazie,  24  Me.  286; 
to  ascertain  the  exact  price.    That,  Terry  v.  Wheeler,  25  N.  Y.  520." 

442 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  529. 


completing  the  sale,  or  the  title  is  otherwise  transferred,  and 
the  quantity,  etc.,  is  to  be  subsequently  ascertained  by  some  par- 
ticular method  or  at  some  particular  place,  the  impossibility 
afterwards  of  doing  so  by  the  method  or  at  the  place  agreed 
upon  will  not  defeat  the  sale,  but  the  quantity,  etc.,  may  be 
ascertained  in  some  other  way.1 

1  Upson  v.  Holmes  (1883),  51  Conn,    agreed  to  sell  to  Benjamin  one  thou- 


500.  In  this  case  the  defendants  pur- 
chased of  the  plaintiff  all  the  wood 
standing  upon  a  certain  lot,  at  a  cer- 
tain price  per  cord,  to  be  cut  and 
hauled  by  the  defendants  and  meas- 
ured in  their  yard,  and  paid  for  after 
measurement.  After  all  had  been  cut 
and  a  part  had  been  hauled,  a  large 
quantity  remaining  on  the  lot  was 
burned.  Held,  (1)  that  there  had 
been  a  delivery  to  the  defendants; 
and  (2)  that  plaintiff  could  recover 
the  value  of  the  wood  burned  on  any 
proper  proof  of  its  quantity. 

So  in  Sedgwick  v.  Cottingham 
(1880),  54  Iowa,  512,  6  N.  W.  R.  738, 
wheat  delivered  to  the  purchaser  to 
be  afterwards  weighed  by  him  was 
accidentally  destroyed  by  fire  before 
weighing.  Held,  that  the  title  had 
passed  and  the  seller  could  recover 
according  to  the  weight  as  shown  by 
other  evidence. 

So  in  Cushman  v.  Holyoke  (1852), 
34  Me.  289,  logs,  which  had  been  sold 
and  delivered  to  be  scaled  at  a  sub- 
sequent time  and  particular  place, 
were  lost  before  being  so  scaled. 
Held,  that  the  quantity  could  be 
shown  by  other  means. 

Other  illustrations  are  found  in 
Haxall  v.  Willis,  15  Gratt.  (Va.)  434; 
Cunningham  v.  Ashbrook,  20  Mo.  555; 
Burrows  v.  Whitaker,  71  N.  Y.  291, 
27  Am.  R.  42;  Gill  v.  Benjamin  (1885), 
64  Wis.  362,  54  Am.  R.  619;  Baldwin 
v.  Doubleday,  59  Vt.  7,  8  Atl.  R.  576. 

In  Gill  v.  Benjamin,  supra,   Gill 


sand  cords  of  wood,  "to  be  deliv- 
ered from  Gill's  pier  (in  Michigan) 
over  the  rail  of  the  vessel  .  .  .  and 
to  be  delivered  from  time  to  time  to 
Benjamin's  vessel  as  wanted  during 
the  season  of  navigation:  said  wood 
to  be  piled  as  taken  from  vessel,  and 
to  be  measured  and  paid  for  when 
piled  on  Benjamin's  dock  in  Milwau- 
kee." One  cargo  of  the  wood  was 
thus  delivered  and  was  lost  with  the 
vessel.  Held,  that  the  contract  as  to 
such  cargo  became  an  executed  sale 
and  the  title  vested  at  once  in  Benja- 
min, and  the  piling  and  measurement 
having  become  impossible,  either  by 
Benjamin's  fault  or  the  act  of  God, 
Benjamin  was  liable  for  the  cargo. 
In  Martineau  v.  Kitching  (1872), 
L.  R.  7  Q.  B.  436,  the  goods  were  de- 
stroyed by  accidental  fire  before  they 
had  been  weighed,  and  it  was  urged 
that  this  relieved  the  buyer,  but 
Blackburn,  J.,  replied:  "I  answer  to 
that,  in  the  first  place,  that  the  point 
is  concluded  by  the  authority  of 
Alexander  v.  Gardner,  1  Bing.  N.  C. 
671;  Turley  v.  Bates,  2  H.  &  C.  200, 
and  the  recent  case  of  Castle  v.  Play- 
ford,  L.  R.  7  Ex.  98  — which  all  go  to 
show  that  where  the  price  is  not  as- 
certained, and  it  could  not  be  ascer- 
tained with  precision  in  consequence 
of  the  thing  perishing,  nevertheless 
the  seller  may  recover  the  price,  if 
the  risk  is  clearly  thrown  on  the  pur- 
chaser, by  ascertaining  the  amount 
as  nearly  as  you  can." 


443 


§§  530-532.]  LA.W   OF   SALE.  [book   it. 

§  530.  .  "Where,  however,  the  goods  have  not  been  de- 
livered, and  the  agreed  method  of  determining  the  quantity, 
etc.,  fails,  and  the  parties  cannot  agree  upon  another,  the  sale 
itself  fails  and  the  title  does  not  pass.1 

§  531.  Effect  of  part  performance. —  Here,  as  in  the  cases 
mentioned  in  the  preceding  subdivision,2  if  the  weighing,  meas- 
uring or  testing  is  necessary  at  all,  the  fact  that  this  act  has 
been  partly  performed  can  usually  be  of  no  aid  in  passing  the 
title  unless  the  performance  of  the  residue  is  waived.  Where 
the  contract  is  entire,  the  vendee  may  insist  upon  full  per- 
formance, and  unless  he  waives  it  the  seller  cannot  recover  by 
showing  that  he  has  done  a  part  only  of  that  which  he  was 
to  do.3 

§  532.  Effect  of  earnest  or  part  payment.— For  reasons 
similar  to  those  likewise  mentioned  in  the  preceding  subdi- 
vision,4 the  payment  of  earnest  does  not  aid  the  passing  of 
the  title.  It  merely  confirms  the  contract;  but  the  question 
whether,  under  that  contract,  the  title  passes,  remains  to  be 
determined  as  before.5 

i  Thus,  in  Nesbit  v.  Burry  (1855),  no  delivery,  is  not  dispensed  with  by 

25  Pa.  St.  208,  the  parties  had  agreed  an  unsuccessful  attempt  to  weigh, 

upon  the  sale  of  a  pair  of  oxen  at  so  or  by  a  refusal  to  try  a  better  mode 

much  a  pound,  live  weight,  the  cattle  of  doing  it.     These  matters  left  the 

to  be  thereafter  weighed  at  a  certain  parties  as  they  stood  before,  and  the 

place  on  certain  scales.     The  buyer  title  remained  in  the  vendor.     Nor 

at  the  time  paid  $10  as  earnest.    The  does  earnest  or  part  payment  aid  in 

cattle  were  afterwards  taken  to  the  vesting  the  title  where  the  quantity 

place  agreed  upon,  but  it  was  then  is  yet  to  be  ascertained  and  there  is 

learned    that    the    scales    specified  no   delivery.     Under    such    circum- 

were  out  of  repair  and  could  not  be  stances  the   contract  is  essentially 

used.     The    buyer    was    willing    to  executory,   and  the    part   payment 

have  them  weighed  in  some  other  only  shows  a  concluded  and  binding 

place,  and  offered  to  pay  the  balance  agreement." 

of  the  price  as  so  determined;  but  2See  ante,  §  513. 

the  seller  refused  and  took  the  oxen  3  The  Elgee  Cotton  Cases  (1874),  89 

home.     The  buyer  then  brought  re-  U.  S.  (22  Wall.)  180;  Kein  v.  Tupper 

plevin  for  them,  but  it  was  held  that  (1873),  52  N.  Y.  550,  quoted  from  in 

the  title  had  not  passed.     The  court  §  522,  ante. 

said:  "The  weighing,   being  neces-  4 See  ante,  §  514. 

sary  to  a  perfect  sale  where  there  is  5  The  Elgee  Cotton  Cases,  supra; 

444 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§  533,  534. 

III.       . 

Where  the  Buyer  is  to  do  Something  other  than  to  Merely 
Pat  the  Price  as  a  Condition  Precedent  to  the  Pass- 
ing of  the  Title. 

§  533.  What  here  included.— The  third  rule  as  stated  by  Mr. 
Benjamin  is,  as  has  been  seen,1  that  "  where  the  buyer  is  by 
the  contract  bound  to  do  anything  as  a  condition,  either  pre- 
cedent or  concurrent,  on  which  the  passing  of  the  property 
depends,  the  property  will  not  pass  until  the  condition  be  ful- 
filled, even  though  the  goods  may  have  been  actually  delivered 
into  the  possession  of  the  buyer."  This  thing  which  the  buyer 
is  to  do  is  usually,  as  has  been  already  stated,  to  pay  the  price; 
and  this  aspect  of  the  condition  will  be  fully  dealt  with  in  the 
following  subdivision. 

But  there  may  be  other  things  than  payment  which  the 
buyer  is  to  do  as  a  condition  precedent;  and  what  these  may 
be  will  here  be  separately  considered. 

§  531.  Title  does  not  pass  till  act  is  performed.— In  a  re- 
cent case  in  Maine  there  was  a  contract  for  the  sale  of  a  quan- 
tity of  wood  to  be  delivered  and  piled  upon  the  buyer's  prem- 
ises, there  to  be  inspected  and  surveyed  by  an  agent  of  the 
buyer,  and  to  be  paid  for  at  a  certain  rate  "  when  said  wood 
shall  be  delivered  and  surveyed  as  aforesaid."  The  wood  was 
all  delivered,  but  before  it  was  all  surveyed  the  buyer  became 
insolvent,  and  the  seller  sought  to  reclaim  the  wood  on  the 
ground  that  the  title  had  not  passed.  The  court,  quoting  and 
applying  the  rule  of  Mr.  Benjamin,  held  that  so  far  as  the  wood 
had  "been  surveyed  and  accepted  by  the  buyer,  the  title  had 
passed  and  the  seller  could  not  regain  it,2  but  so  far  as  that  act 
had  not  been  done  the  title  did  not  pass.3 

Nesbit  v.  Burry  (1855),  25  Pa.  St.  208;        2Pinkham  v.  Appleton  (1890),  82 
Jennings  v.  Flanagan  (1837),  5  Dana    Me.  574,  20  Atl.  R.  237. 
(Ky.),  217,  30  Am.  Dec.  683.  3  Ballantyne  v.  Appleton  (1890),  82 

lAnte,  §  505.  Me.  570,  20  Atl.  R.  235. 

445 


§§  535-537.]  law  of  sale.  [book  ii. 

§  535.  .  The  same  principle  has  to  some  extent  been  ap- 
plied l  where  oxen  were  sold  and  delivered  to  the  vendee,  to  be 
slaughtered,  prepared  for  market  and  weighed  by  him,  and 
to  be  paid  for  in  cash  at  so  much  per  hundred  weight  when 
dressed;2  and  where  a  carload  of  wheat  was  delivered  to  the 
buyer,  to  be  weighed  by  him  and  paid  for  in  cash  at  a  certain 
price  per  bushel  when  the  number  of  bushels  should  be  so  de- 
termined ; 3  and  where  a  roll  of  carpet  was  sent  to  the  buyer's 
house  that  he  might  measure  and  cut  off  what  he  needed  to 
cover  his  room,  and  was  to  pay  for  it  in  cash  when  the  amount 
was  thus  ascertained ; 4  though  these  cases  more  appropriately 
belong  among  those  cited  in  the  following  subdivision. 

§  536.  Unless  a  contrary  intention  appears.—  But  this  rule, 
like  the  others,  yields  to  evidence  of  a  contrary  intention.  Thus, 
as  has  been  seen,5  the  title  may  pass,  if  that  under  all  of  the 
circumstances  appears  to  have  been  the  intention,  although  the 
buyer  is  yet  to  do  some  act  in  reference  to  the  goods;  as,  for 
example,  to  weigh  them  that  the  amount  of  the  price  may  be 
ascertained.6 

IT. 

Where  Payment  of  Pkice  is  Condition  Precedent  to  Pass- 
ing of  Title. 

§  537.  What  here  included.— The  question  whether  the  pay-' 
ment  of  the  price  is  a  condition  precedent  to  the  passing  of  the 
title  is  one  which  presents  several  aspects,  and  involves  the  con- 
sideration of  a  variety  of  circumstances.  It  must,  in  the  first 
place,  be  distinguished  from  the  question  whether  the  seller  has 
the  right  to  retain  possession  until  payment  —  a  matter  not  fully 
to  be  considered  now,  but  dealt  with  hereafter  under  the  head 

1  See  ante>  §  524  4  Andrew    v.   Dieterich  (1835),   14 

2  Ward  v.   Shaw  (1831),  7  Wend.  Wend.  (N.  Y.)  31. 
(N.  Y.)  404.  5  See  ante,  §  498. 

3  Hoffman  v.  Culver  (1880),  7  111.  6  See  Burke  v.  Shannon  (Ky.),  43  S. 
APP-  45°-  W.  R.  223;  Kohl  v.  Lindley,  39  111. 

195;  Phillips  v.  Moor,  71  Me.  78. 
446 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  538. 

of  the  vendor's  lien.  There  it  will  be  found  that,  though  the 
title  may  have  passed,  the  seller  has  in  many  cases  the  right  to 
retain  possession  as  a  means  of  securing  the  payment  of  the 
price.  The  question  here  is  different,  and  involves  the  matter, 
not  of  the  transfer  of  possession,  but  of  the  passing  of  the  title. 
Is  the  payment  of  the  price  a  condition  precedent  to  the  pass- 
ing of  the  title? 

This  question  divides  itself  into  two  distinct  parts:  (1)  In  gen- 
eral, is  the  payment  of  the  price,  by  implication,  a  condition 
precedent;  and  (2)  May  the  parties,  by  express  agreement,  make 
it  a  condition  precedent  ? 

The  former  of  these  two  subdivisions  will  be  considered,  first, 
and  after  it  the  second. 

1.  Payment  of  Price  as  Implied  Condition  Precedent  to  Passing 

of  Title. 

§  538.  In  general  —  Payment  as  condition  precedent  where 
sale  impliedly  for  cash. —  Where  a  contract  for  the  present 
sale  of  goods  has  been  made,  and  nothing  is  said  as  to  the  time 
of  payment,  the  law  presumes  that  no  credit  is  to  be  given,  and 
that  the  price  is  to  be  paid  concurrently  with  the  delivery  of 
the  goods, —  or,  as  it  is  often  phrased,  that  the  sale  is  to  be  for 
cash.  Under  such  circumstances,  is  the  payment  of  the  price 
to  be  deemed  by  implication  a  condition  precedent  to  the  trans- 
fer of  the  title  ? 

To  this  question  there  may  be  given  the  general  answer  that 
where  the  parties  are  negotiating  concerning  specific  goods, 
and  all  of  the  terms  have  been  agreed  upon,  and  nothing  re- 
mains to  be  done  except  to  deliver  the  goods  and  pay  the  price, 
the  title,  as  has  been  seen,1  will  be  deemed  to  pass  at  once,  even 
without  delivery  or  payment,  unless  a  contrary  intention  ap- 
pears. The  right  to  possession,  however,  as  has  also  been  seen, 
does  not  necessarily  pass,  for  the  seller,  who  has  not  waived  it, 
has  the  right  to  retain  possession  of  the  goods  by  virtue  of  his 
vendor's  lien  to  secure  the  payment  of  the  price.2 

i  See  ante,  §  483.  2 See  ante,  §  493. 

447 


§§  539-541.]  LAW   OF   SALE.  [book   II. 

§  539.  .  Notwithstanding  this  general  answer,  the  spe- 
cific question  may  still  be  pressed :  Where  the  parties  evidently 
contemplate  that  the  transaction  is  to  be  closed  at  once  —  where 
no  term  of  credit  is  agreed  upon  —  no  stipulation  for  further 
dealings  had  —  where  the  seller,  clearly  expects  cash  in  hand, 
although  there  may  have  been  no  express  agreement  to  that 
effect, —  is  there  not  in  these  facts  such  evidence  of  an  inten- 
tion that  the  title  shall  not  pass  until  the  price  is  paid  as  to 
make  such  payment  a  condition  precedent,  even  within  the  gen- 
eral rule  above  referred  to  ? 

Before  the  answer  to  this  question  is  given  let  another  be 
put.     Thus  — 

§  540.  Payment  of  price  as  implied  condition  where  sale 
is  expressly  for  cash. —  Instead  of  remaining  silent  as  to  the 
time  of  payment,  as  above  supposed,  the  parties  may  expressly 
stipulate  that  the  sale  is  to  be  for  "  cash  "  or  for  "  cash  upon 
delivery."  In  such  a  case,  also,  is  the  payment  of  the  price  to 
be  regarded  as  a  condition  precedent  to  the  passing  of  the 
title  ? 

The  parties  may,  indeed,  go  further  and  expressly  stipulate 
in  terms  that  the  title  shall  not  pass  until  the  price  is  paid ; 
but  the  effectiveness  of  such  a  stipulation,  unless  it  is  waived,  is 
so  clear  as  to  require  no  comment  here.  The  difficult  question 
is,  whether  a  sale  which,  by  implication  or  expressly,  is  to  be  for 
"cash"  or  "cash  upon  delivery,"  shall  be  deemed  conditional. 

§  541.  Meaning  of  i(  cash  sale." — It  will  be  evident, 

upon  reflection,  that  the  expressions  "  cash,"  "  cash  down,"  or 
"  cash  upon  delivery,"  may  be  used  in  two  different  senses  — 
one  where  the  words  indicate  simply  that  the  goods  must  be 
paid  for  before  the  buyer  is  to  be  entitled  to  possession;  and 
the  other,  where  they  indicate  an  intention  not  to  part  with  the 
title  until  the  price  is  paid.1    Whether  they  are  to  have  the  one 

!Thus  in  Clark  v.  Greeley  (1882),  condition  precedent  to  the  transfer 
62  N.  H.  394,  the  court  say:  "A  sale  of  the  title,  and  in  such  a  case  the 
of  chattels  may  be  conditional.  The  property  will  not  pass  although  the 
payment  of  the  price  may  be  made  a    goods  are  delivered.    A  sale  for  cash 

448 


CH.  III.]  CONDITIONAL   SALE    OF   SPECIFIC    CHATTELS. 


[§  542- 


meaning  or  the  other  is  a  question  of  intention,  depending 
largely  upon  the  situation  of  the  parties,  the  character  of  the 
property  and  the  circumstances  of  the  case.  If  the  contract  is 
in  writing,  or  the  facts  are  not  disputed,  it  is  a  question  for  the 
court;1  if  the  facts  are  in  dispute,  the  question  is  for  the  jury.2 

g  542.  Title  may  pass  though  possession  retained  — 

Payment  and  delivery  to  be  concurrent. —  Where  the  words 
are  given  the  first  meaning,  it  must  be  true  that  the  title  passes 
at  once  upon  the  completion  of  the  contract  and  by  force  of  it, 
so  as  to  cast  the  risk  upon  the  buyer  and  entitle  the  seller  to 
the  price.3  It  is,  of  course,  true  that  the  buyer,  even  though  he 
has  the  title,  is  not  entitled  to  possession  until  he  pays  the  price ; 
for  payment  and  delivery,  in  such  a  case,  are  presumed  to  be 
concurrent  acts,4  and  until  payment  is  made  the  seller  may  re- 
tain the  goods  by  virtue  of  his  vendor's  lien.  But  the  seller 
retains  possession  and  not  title. 


is  not  necessarily  a  conditional  sale. 
Scudder  v.  Bradbury,  106  Mass.  422. 
The  phrases  '  terms  cash '  and  '  cash 
down '  may  or  may  not  import  that 
payment  of  the  price  is  made  a  con- 
dition precedent  to  the  transfer  of 
the  title,  according  to  the  intent  of 
the  parties.  If  by  the  use  of  these 
terms  the  parties  understand  merely 
that  no  credit  is  to  be  given,  and  that 
the  seller  will  insist  on  his  right  to 
retain  possession  of  the  goods  until 
the  payment  of  the  price,  the  sale  is 
still  so  far  completed  and  absolute 
that  the  property  passes;  but  if  it  is 
understood  that  the  goods  are  to  re- 
main the  property  of  the  seller  until 
the  price  is  paid,  the  sale  is  condi- 
tional and  the  title  does  not  pass." 
To  same  effect:  Towne  v.  Davis 
(1890),  66  N.  H.  396,  22  AtL  R  450. 

i  Davis  v.  Giddings,  30  Neb.  209,  46 
N.  W.  R.  425. 

2  Collins  v.  Houston,  138  Pa.  St.  481, 
21  Atl.  R.  234;  Paul  v.  Reed,  52  N.  H. 


136;  Clark  v.  Greeley,  62  N.  H.  394; 
Towne  v.  Davis,  66  N.  H.  396,  22  Atl. 
R.  450;  Scudder  v.  Bradbury,  106 
Mass.  422;  Empire  State  Type  Found- 
ing Co.  v.  Grant,  114  N.  Y.  40,  21  N. 
E.  R.  49  (citing  Hall  v.  Stevens,  40 
Hun,  578;  Hammett  v.  Linneman,  48 
N.  Y.  399). 

3  Clark  v.  Greeley,  supra;  Phillips 
v.  Moor,  71  Me.  78;  Rail  v.  Little 
Falls  Lumber  Co.,  47  Minn.  422,  50 
N.  W.  R.  471;  Hayden  v.  Demets,  53 
N.  Y.  426. 

4  In  Southwestern  Freight  Co.  v. 
Stanard  (1869),  44  Mo.  71,  100  Am. 
Dec.  255,  it  is  said :  "  Where  no  time 
is  stipulated  for  payment,  it  is  un- 
derstood to  be  a  cash  sale,  and  the 
payment  and  delivery  are  immediate 
and  concurrent  acts,  and  the  vendor 
may  refuse  to  deliver  without  pay- 
ment: and  if  the  payment  be  not 
immediately  made,  the  contract  be- 
comes void.  Outwater  v.  Dodge,  7 
Cow.  (N.  Y.)  85;  Woods  v.  Magee,  7 


29 


449 


543.] 


LA.W    OF   SALE. 


[book  II. 


§  543.  Or  title  may  not  pass  until  payment.— Where 

the  words  are  given  the  second  meaning,  it  is  clear  that  the 
title  will  not  pass  until  the  price  is  paid  or  the  condition 
waived.  Here,  until  payment  or  its  tender,  the  seller  retains 
not  simply  the  possession,  but  the  title  also.  It  is  unquestion- 
able that  this  is  the  ordinary  interpretation  of  the  words,  and 
that  the  title  does  not  pass  until  the  price  is  paid  or  payment 
waived,  not  only  in  those  cases  in  which  the  parties  expressly 
stipulate  that  the  sale  is  to  be  for  cash,  but  also  in  those  in 
which,  though  there  was  no  express  stipulation,  the  parties 
evidently  contemplated  that  the  transfer  of  the  title  and  the 
payment  of  the  price  were  to  be  concurrent  acts.1 


Ohio  (Pt.  II),  128,  30  Am.  Deo.  202; 
Leven  v.  Smith,  1  Denio  (N.  Y.),  571; 
Com.  Dig.,  tit.  Agreement,  B.  3;  Pal- 
mer v.  Hand,  13  Johns.  (N.  Y.)  434; 
Harris  v.  Smith,  3  Serg.  &  R.  (Pa.)  20; 
Bainbridge  v.  Caldwell,  4  Dana  (Ky.), 
213;  Ferguson  v.  Clifford,  37  N.  H.  86; 
Morris  v.  Rexford,  18  N.  Y.  552;  2 
Kent'aCom.(llthed.)  605."  This  state- 
ment, however,  as  will  be  observed, 
and  as  an  examination  of  the  cases 
cited  will  more  clearly  indicate,  con- 
fuses the  delivery  of  possession  with 
the  transfer  of  the  title.  A  much  more 
accurate  statement  is  that  found  in 
Saff  ord  v.  McDonough  (1876),  120  Mass. 
290,  as  follows:  "  It  should  be  kept  in 
mind  that  the  question  is  not  whether 
.  .  .  the  title  in  the  property  would 
have  passed  to  the  defendant  so  that 
it  would  be  at  his  risk.  In  such  a  case 
the  title  would  pass  to  the  purchaser 
unless  there  was  some  agreement  to 
the  contrary,  but  the  vendor  would 
have  a  lien  for  the  price  and  could  re- 
tain possession  until  its  payment.  Has- 
kins  v.  Warren,  115  Mass.  514;  Morse 
v.  Sherman,  106  Mass.  430;  Townsend 
v.  Hargraves,  118  Mass.  325." 

1  It  was  laid  down  by  the  earlier 
writers  that  a  sale  for  cash  is  a  con- 


ditional sale.  Thus,  Kent  says  that 
"Where  no  time  is  agreed  on  for 
payment,  it  is  understood  to  be  a 
cash  sale,  and  the  payment  and  de- 
livery are  immediate  and  concurrent 
acts,  and  the  vendor  may  refuse  to 
deliver  without  payment,  and  if  the 
payment  be  not  immediately  made, 
the  contract  becomes  void."  2  Kent's 
Cora.  496,  where  he  cites  Comyn's 
Digest,  tit.  Agreements,  B.  3,  and 
Bell  on  Sales,  Edin.  (1844),  20,  21. 

In  an  early  case,  Copland  v.  Bos- 
quet (1826),  4  Wash.  C.  C.  588,  6  Fed. 
Cas.,  p.  513,  No.  3212,  it  was  said  that 
"  if  the  sale  be  for  money  to  be  im- 
mediately paid,  or  to  be  paid  upon 
delivery,  payment  of  the  price  is  a 
precedent  condition  of  the  sale, 
which  suspends  the  completion  of 
the  contract  until  the  condition  is 
performed,  and  prevents  the  right  of 
property  from  passing  to  the  vendee, 
unless  the  vendor  chooses  to  trust  to 
the  personal  credit  of  the  vendee. 
If  credit  be  not  given,  the  bargain  is 
considered  nothing  more  than  a  com- 
munication." Quoted  and  approved 
in  Bergan  v.  Magnus  (1896),  98  Ga. 
514,  25  S.  E.  R.  570. 

In  Paul  v.  Reed  (1872),  52  N.  H.  136, 


450 


CH.   III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  5W. 


§  644. 


The  subject,  nevertheless,  is  one  concerning 


which  there  seems  to  be  much  difference  of  opinion  and  con- 
siderable cloudiness  of  thought.  It  is  often  said  that  a  sale 
for  cash  is  a  conditional  one,  and  that  the  property  will  not 


Williston's  Cas.  on  Sales,  68,  it  ap- 
peared that  Reed,  who  was  keeping 
a  boarding  house,  had  arranged  to 
sell  out  to  one  Moody,  who  was  to 
buy  Reed's  hog,  sugar  and  certain 
other  supplies.  On  the  day  that  the 
transfer  was  to  be  made  Reed  was  to 
furnish  the  breakfast  and  Moody  was 
to  furnish  the  dinner,  and  the  parties 
were  respectively  to  change  posses- 
sion of  the  house.  A  price  was  agreed 
upon  for  the  several  articles  which 
Moody  was  to  buy,  the  hog  was 
changed  from  one  pen  to  another  at 
Moody's  request,  the  sugar  was  put  in 
with  his  stock,  and,  the  amount  to  be 
paid  having  been  ascertained,  he  stood 
with  his  pocket-book  in  his  hand 
looking  over  the  list  preparatory  to 
immediate  payment,  when  he  was 
served  with  garnishment  or  trustee 
process  by.  Paul,  a  creditor  of  Reed. 
Reed  immediately  demanded  back 
the  goods,  saying:  "We  can  call  it 
no  sale,  and  I  can  take  my  stuff." 
Moody  said  he  had  no  objections  to 
giving  up  the  goods  if  he  could  safely 
do  so;  but  he  was  advised  not  to  do 
so.  The  understanding,  as  testified 
to  by  Moody,  was,  "  1  was  to  pay  cash 
right  in  his  fingers;  I  did  not  ask 
any  time  for  him  to  wait."  The  ques- 
tion was  whether  the  title  had  passed 
so  that  Moody  owed  Reed  the  price 
at  the  time  of  the  service  of  the  writ. 
The  court  below  held  that  the  title 
had  passed  and  that  the  trustee  was 
therefore  liable;  but  the  supreme 
court  reversed  it,  holding  that  the 
transfer  of  title  was  conditioned  upon 
immediate  payment.   Said  the  court : 


"  The  question  then  is  whether  the 
goods  were  delivered  so  as  to  vest 
the  title  in  the  trustee.  The  proof 
tends  to  show  that  the  sale  was  for 
cash,  and  not  on  credit;  so  the  trus- 
tee testifies,  and  this  is  just  what 
would  have  been  intended  had  no 
time  of  payment  been  stipulated.  2 
Kent's  Com.  496,  497;  Story  on  Con., 
sec.  796;  Noy's  Maxims,  87;  Insurance 
Co.  v.  De  Wolf,  2  Cow.  105.  The  case, 
then,  stands  before  us  as  a  contract 
of  sale  for  cash  on  delivery;  in  such 
case  the  delivery  and  payment  are  to 
be  concurrent  acts;  and  therefore,  if 
the  goods  are  put  into  the  possession 
of  the  buyer  in  the  expectation  that 
he  will  immediately  pay  the  price, 
and  he  does  not  do  it,  the  seller  is  at 
liberty  to  regard  the  delivery  as  con- 
ditional, and  may  at  once  reclaim 
the  goods.  In  such  a  case  the  con- 
tract of  sale  is  not  consummated, 
and  the  title  does  not  vest  in  the 
buyer.  The  seller  may,  to  be  sure, 
waive  the  payment  of  the  price,  and 
agree  to  postpone  it  to  a  future  day, 
and  proceed  to  complete  the  deliv- 
ery; in  which  case  it  would  be  abso- 
lute, and  the  title  would  vest  in  the 
buyer.  But  in  order  to  have  this  ef- 
fect it  must  appear  that  the  goods 
were  put  into  the  buyer's  possession 
with  the  intention  of  vesting  the  title 
in  him.  If,  however,  the  delivery 
and  payment  were  to  be  simultane- 
ous, and  the  goods  were  delivered  in 
the  expectation  that  the  price  would 
be  immediately  paid,  the  refusal  to 
make  payment  would  be  such  a  fail- 
ure on  the  part  of  the  buyer  to  per- 


451 


§  544.] 


LAW  OF  SALE. 


[BOOK  II. 


pass  until  the  price  is  paid,  when  all  that  was  really  necessary 
or  intended  was  evidently  that  the  buyer  could  not  have  pos- 
session until  he  paid  the  price.  There  are,  doubtless,  on  the 
other  hand,  cases  in  which  the  sale  was  really  conditional  — 


form  the  contract  as  to  entitle  the 
seller  to  put  an  end  to  it  and  reclaim 
the  goods.  The  evidence  relied  upon 
to  prove  the  delivery  to  be  absolute 
and  intended  to  pass  the  title  at  all 
events  is  simply  and  solely  the 
changing  of  the  hog  into  another 
pen,  and  mixing  the  sugar  with  the 
sugar  of  the  buyer.  Without  the 
mixing  of  the  sugar,  the  case  would 
be  just  the  ordinary  one  of  a  deliv- 
ery of  the  goods  with  the  expecta- 
tion that  the  buyer  would  at  once 
pay  the  price;  and  we  think  that 
circumstance  is  not  enough  to  show 
a  purpose  to  make  the  delivery  abso- 
lute, but  rather  a  confident  expecta- 
tion that  the  buyer  would  do  as  he 
had  agreed,  and  pay  the  price  at  once. 
.  ,  .  It  is  very  clear  that  the  in- 
termingling of  the  sugar  does  not.  as 
matter  of  law,  make  the  delivery  ab- 
solute: and  I  think,  as  matter  of  fact, 
it  is  not  sufficient  to  prove  an  inten- 
tion to  pass  the  title  absolutely. 
When  the  buyer  declined  to  pay  the 
price,  the  seller  at  once  reclaimed 
the  goods,  and  so  notified  the  buyer, 
who  did  not  object  to  giving  up  the 
sale  if  he  could  safely  do  so." 

In  Turner  v.  Moore  (1886),  58  Vt. 
455,  plaintiff  had  bargained  with  de- 
fendant for  a  tombstone.  Defend- 
ant claimed  that  the  sale  was  to  be 
for  cash,  and  plaintiff  testified  that 
at  the  time  of  the  contract  nothing 
was  said  as  to  the  time  of  payment 
and  that  she  expected  to  pay  cash 
on  delivery.  When  the  stone  was 
completed,  defendant  took  it  on  Sat- 
urday afternoon  to  the  cemetery  to 


place  it  in  position,  but,  night  com- 
ing on  before  it  was  erected,  he  left 
it  there  until  the  following  Wednes- 
day, when,  having  become  concerned 
about  the  payment,  he  took  the  stone 
back  to  his  shop.  Plaintiff  there- 
upon brought  this  action,  declaring 
in  trover  and  for  the  conversion  of 
the  stone.  The  court  below  permit- 
ted a  recovery,  but  this  judgment 
was  reversed  by  the  supreme  court, 
where  it  was  said:  '•  If  the  contract 
was  for  the  sale  of  the  stone,  and 
there  was  no  agreement  that  time 
should  be  given  the  plaintiff  in 
which  to  make  payment,  it  was  a 
cash  sale,  and  no  title  would  vest  in 
the  plaintiff  until  she  paid  or  tend- 
ered the  money.  The  court  told  the 
jury  that  if  the  stone  was  delivered 
to  the  plaintiff,  the  title  vested  in 
her,  and  she  became  the  owner.  We 
think  they  should  have  been  told 
that,  if  they  found  it  a  cash  sale,  title 
would  not  vest  until  payment  or 
tender  of  payment." 

In  Evansville,  etc.  R.  Co.  v.  Erwin 
(1882),  84  Ind.  457,  the  parties  ex- 
pressly stipulated  that  the  goods 
in  question  —  a  carload  of  wheat  — 
should  be  delivered,  weighed  and 
paid  for  at  a  certain  place  and  that 
payment  should  be  made  upon  de- 
livery, and  the  seller  gave  as  his  rea- 
son for  insisting  upon  such  payment 
that  the  vendee  was  a  stranger  to 
him.  This  was  held  to  be  a  case 
where  payment  was  a  condition  pre- 
cedent to  the  passing  of  the  title. 

Palmer  v.  Hand  (1816),  13  Johns. 
(N.  Y.)  434,  was  a  case  where  a  raft 


452 


CH. 


III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.       .      [§  54.4. 


cases  in  which  it  is  clear,  from,  the  surrounding  circumstances 
or  the  express  language  of  the  parties,  that  the  title  was  not 
to  be  transferred  until  the  price  was  paid. 

merit  being  made  or  demanded.  Upon 
the  vendor  attempting  to  assert  title, 
the  court  held  that  in  such  a  sale 
title  would  not  pass  before  pay- 
ment, unless  the  condition  had  been 
waived,  an  apparently  unrestricted 
and  unconditional  delivery  being  pre- 
sumptive evidence  of  such  waiver. 

In  Johnson-Brinkman  Co.  v.  Cen- 
tral Bank  (1893),  116  Mo.  558,  22  S. 
W.  R.  813,  38  Am.  St.  R.  615,  plaint- 
iffs sold  a  number  of  cars  of  wheat 
for  cash,  and  payment  was  made  by 
private  check  of  the  vendee.  The 
check,  after  being  duly  deposited 
and  sent  through  the  clearing-house, 
was  presented  to  the  defendant 
bank,  on  which  it  was  drawn,  and 
payment  refused,  the  wheat  having 
meantime  been  transferred  to  a 
third  party  and  the  proceeds  depos- 
ited with  defendant  to  the  original 
vendee's  account.  It  was  held  that 
payment  by  check  was  conditional, 
and  the  title  had  not  passed  to  the 
vendee,  in  the  absence  of  negligence 
or  laches. 

Com.  v.  Devlin  (1886),  141  Mass.  423, 
6  N.  E.  R.  64,  was  a  criminal  case 
wherein  the  defendant  was  charged 
with  obtaining  goods  under  false  pre- 
tenses. He  had  agreed  to  purchase 
certain  sheep  for  cash,  and  about  an 
hour  after  delivery  the  parties  met 
and  the  defendant  by  false  pretenses 
induced  the  vendor  to  take  a  worth- 
less check  in  payment.  It  was  held 
that  the  facts  showed  an  intention 
that  delivery  and  payment  should  be 
substantially  concurrent,  and  the  de- 
lay of  an  hour  was  no  waiver  on  the 
part  of  the  vendor.  The  title  did 
not  pass  until  the  parties  met  and 


of  lumber  was  sold  with  the  evident 
intention  that  cash  should  be  paid 
on  delivery.  The  vendee  resold  it 
and  absconded  before  the  delivery 
was  complete,  and  the  vendor  there- 
upon stopped  delivery  and  asserted 
ownership  as  against  the  vendee  of 
the  absconding  purchaser.  The  court 
used  language  which  was  somewhat 
self  contradictory,  but  the  opinion 
evidently  was  that  the  title  had  not 
passed. 

In  Leven  v.  Smith  (1845),  1  Denio 
(N.  Y.),  571,  the  plaintiffs  were  vend- 
ors of  boots  and  shoes  which  were 
delivered  to  the  defendant  in  the 
expectation  of  immediate  cash  pay- 
ment. Instead  of  tendering  cash, 
the  defendant  offered  a  matured 
note  of  the  plaintiffs  as  part  pay- 
ment, and  cash  for  the  balance, 
which  was  refused  and  replevin 
brought  for  the  goods.  Action  sus- 
tained on  the  ground  that  after  such 
delivery  the  defendant  held  the 
goods  in  trust  for  the  plaintiffs  until 
payment  was  made  or  waived. 

Pinkham  v.  Appleton  (1890),  82  Me. 
574.  20  AtL  R.  237.  following  Mixer  v. 
Cook(1850),31  Me.340,held  that  where 
a  sale  of  personal  property  was  to  be 
for  cash  (in  both  these  cases  expressly 
so),  the  title  would  pass  to  the  vendee 
before  payment  only  when  the  pay- 
ment as  a  condition  precedent  had 
been  waived,  and  it  was  clear  that 
mere  delivery  was  not  held  to  be 
such  a  waiver.  So,  also,  in  Stone  v. 
Perry  (1872),  60  Me.  48. 

In  Fishback  v.  Van  Dusen  (1885),  33 
Minn.  Ill,  22  N.  W.  R.  244,  a  sale  of 
wheat  was  made  expressly  for  cash, 
and  the  wheat  delivered  without  pay- 


453 


§  544.] 


LAW    OF   SALE. 


[BOOK    II. 


In  many  cases,  moreover,  it  is  practically  immaterial  whether 
there  was  a  reservation  of  the  title  or  a  reservation  of  posses- 
sion ;  because,  if  it  were  the  latter  only,  the  operation  of  the 
vendor's  lien  would  adequately  protect  the  seller.     That  there 


agreed  about  the  check,  and  the 
goods  were  therefore  obtained  by 
said  false  pretenses. 

In  McDonough  v.  Sutton  (1876),  35 
Mich.  1,  a  number  of  farmers,  who 
had  driven  their  hogs  to  market, 
agreed  to  sell  them  to  the  defend- 
ant, and  he  in  turn  agreed  to  sell 
them  to  the  plaintiff,  both  sales  to 
be  for  cash.  The  plaintiff's  money 
not  arriving,  defendant  sold  the  hogs 
to  another,  and  while  the  purchaser 
was  driving  them  off  plaintiff  tend- 
ered the  price  and  then  brought 
trover.  It  was  held  that  all  parties 
understood  that  defendant  was  not 
the  owner  and  could  not  convey 
title.  The  property  remained  in  the 
farmers  until  they  received  the  pur- 
chase price,  and  defendant  was  at  no 
time  in  a  position  to  convey  title  to 
any  one. 

fn  Welsh  v.  Bell  (1858),  32  Pa.  St. 
12,  the  court  said :  "  It  is  a  condition 
precedent  of  a  sale  for  cash,  in  order 
to  pass  the  property  to  the  vendee, 
that  payment  should  be  made.  .  .  . 
Yet,  even  if  the  contract  be  for  a 
cash  sale,  if  the  thing  agreed  to  be 
sold  be  delivered  without  payment, 
the  property  passes  to  the  vendee 
and  is  liable  to  levy  and  sale  as  his." 
In  Hammett  v.  Linneman  (1872), 
48  N.  Y.  399,  a  contract  of  sale  was 
made  for  a  quantity  of  coal,  for  cash 
on  delivery.  The  coal  was  delivered 
and  mixed  with  other  coal  in  the  de- 
fendant's yard.  Within  two  or  three 
days  payment  was  demanded,  but 
the  defendant  had  sold  the  coal  and 
refused  to  pay.     The  court  held  that 


defendant  had  no  title,  saying  that 
"  it  was  not  necessary  to  stand  by  the 
coal  while  being  delivered  to  the  de- 
fendant's carts  and  demand  payment 
for  each  load  before  it  was  carted 
away,  under  penalty  of  waiving  the 
condition  upon  which  the  title  was 
to  pass.  It  was  sufficient  that  pay- 
ment was  the  condition  agreed  on, 
and  that  a  request,  in  the  case  of  a 
bulky  article  like  coal,  was  made  for 
payment  promptly,  within  two  or 
three  clays  after  it  had  been  re- 
ceived." 

In  Dows  v.  Kidder  (1881),  81  N.  Y. 
121,  the  plaintiffs  sold  a  cargo  of 
corn  to  Atkinson  &  Co.,  expressly  for 
cash  on  delivery.  They  sent  a  bill  to 
the  vendee  for  the  price  and  made  a 
conditional  delivery  by  delivering 
the  official  weigher's  return,  indorsed 
by  themselves,  in  order  to  allow  At- 
kinson &  Co.  to  draw  up  exchange 
against  the  corn;  but  this  delivery 
was  only  on  the  express  condition 
that  title  should  not  pass  till  pay- 
ment was  made.  Atkinson  &  Co. 
sold  the  corn  and  failed,  whereupon 
plaintiffs  asserted  title.  The  court 
said:  •' Upon  the  facts  found  by  the 
referee  it  is  plain  that  no  title  to  the 
corn  passed  from  the  plaintiffs  to 
Atkinson  or  to  Atkinson  &  Co.  There 
was  an  agreement  to  sell,  but  pay- 
ment was  to  be  made  in  cash  on  de- 
livery. Payment  was  thus  made  a 
condition  precedent,  and  until  the 
condition  was  performed  the  title 
could  not  be  affected." 

In  Adams  v.  O'Connor  (1868),  100 
Mass.  515,  where  a  cash  sale  of  whisky 


451 


CH.  III.]  CONDITIONAL   SALE    OF   SPECIFIC    CHATTELS.  [§  544. 


are  cases,  however,  in  which  the  question  of  the  reservation 
of  the  title  must  be  determined  is  clear;  and  to  these  only  the 
present  consideration  is  devoted :  the  question  of  the  vendor's 
lien  is  fully  treated  in  a  later  chapter. 

sale  was  completed  so  as  to  pass  the 
property.  The  general  rule  in  such 
cases  is,  that  the  price  must  be  paid 
before  the  property  will  pass,  al- 
though conditional  delivery  may 
occur.  If  delivery  takes  place,  where 
payment  is  expected  simultaneously 
therewith,  it  is  in  law  made  upon 
the  condition  precedent  that  the 
price  shall  forthwith  be  paid." 

So  in  Neil  v.  Cheves  (1830),  1  Bailey 
(S.  C),  537,  and  Pickett  v.  Cloud 
(1830),  1  id.  362,  where  nothing  was 
said  about  the  time  for  payment,  it 
was  held  that  payment  on  delivery 
was  a  condition  precedent  to  the 
vesting  of  the  property. 

Mathews  v.  Cowan  (187a),  59  111. 
341,  was  a  case  of  trover  for  wheat 
sold  for  cash  and  never  paid  for.  In 
such  a  case  the  court  held  that  pay- 
ment was  a  condition  precedent  to 
the  passing  of  the  title,  and  the  ap- 
propriation of  the  flour  by  the  de- 
fendant was  a  conversion  of  the 
plaintiff's  property.  To  the  same  ef- 
fect, Mich.  Cent.  R.  Co.  v.  Phillips 
(1871),  60  I1L  190. 

In  Lehman  v.  Warren  (1875),  53 
Ala.  535,  the  court  had  under  consid- 
eration a  contract  of  sale  of  cotton 
made  by  commission  merchants,  and 
the  decision  was  based  upon  a  stat- 
ute declaring  that  "no  cotton  sold 
by  commission  merchants  to  brokers 
or  buyers  shall  be  considered  as  de- 
livered and  the  ownership  given  up 
until  the  same  is  fully  paid  for." 
Flanders  v.  Maynard  (1877),  58  Ga.  56, 
was  a  similar  case  and  rested  upon  a 
like  statute. 


was  made,  the  court  said:  "  The  sale 
to  the  defendants,  having  been  found 
by  the  jury  to  have  been  for  cash, 
was  a  conditional  sale,  and  vested  no 
title  in  the  purchasers  until  the  terms 
of  sale  had  been  complied  with." 

In  Wabash  Elevator  Co.  v.  Bank 
(1872),  23  Ohio  St.  311,  in  construing 
a  contract  for  the  sale  of  wheat,  the 
court  said:  "The  title  did  not  pass. 
Under  the  circumstances  disclosed 
by  the  evidence,  there  can  be  no 
doubt  but  that  the  transaction  was 
understood  by  the  parties  as  a  cash 
sale.  ...  A  delivery  with  the 
expectation  of  receiving  immediate 
payment  is  not  absolute,  but  condi- 
tional until  payment  is  made,  and, 
where  there  is  no  waiver  of  pay- 
ment, no  title  vests  in  the  purchaser 
till  the  price  is  paid."  Followed  in 
Hodgson  v.  Barrett  (1877),  33  Ohio 
St.  63. 

So  Fenelon  v.  Hogaboom  (1872),  31 
Wis.  172,  following  Goldsmith  v.  Bry- 
ant (1870),  26  Wis.  34,  holds  that  in  a 
cash  sale  payment  is  a  condition  pre- 
cedent to  the  passing  of  the  title. 

In  Ferguson  v.  Clifford  (1858),  37 
N.  H.  86,  which  was  an  action  of 
trover  for  a  church  organ,  the  court 
said:  "We  think  it  was  properly  left 
to  the  jury  to  find,  upon  all  the  evi- 
dence before  them,  whether  the  sale 
to  Laurence  was  completed  so  as  to 
pass  the  property  to  him.  The  price 
not  having  been  paid,  and  no  evi- 
dence being  offered  tending  to  show 
any  understanding  or  agreement  that 
credit  was  to  be  given,  the  court 
would  not  have  been  justified  in 
holding,  as  a  matter  of  law,  that  the 


455 


545-547.] 


LAW    OF    SALE. 


[BOOK    II. 


§  545.  Check  or  draft  not  payment  if  dishonored. — 

"Where  the  sale  is  thus  to  be  for  cash  and  payment  is  found  to 
be  a  condition  precedent,  it  is  clear  that  if  the  buyer  obtains  the 
goods  by  giving  for  the  price  a  check  or  draft  which  is  subse- 
quently dishonored,  there  is  no  payment  (unless  the  check  or 
draft  was  clearly  taken  as  such),  and  the  title  does  not  pass.1 

§  546.  Giving  of  note  or  other  security  as  condition  pre- 
cedent.—  Reasons  similar  to  those  found  applicable  in  the  pre- 
ceding sections  operate  where  it  is  agreed  that  the  buyer  shall 
give  a  note,  mortgage  or  other  security  for  the  price.  The  par- 
ties may  thus,  either  expressly  or  impliedly,  make  the  giving  of 
such  note  or  security  a  condition  precedent  to  the  passing  of 
the  title ;  and  where  they  have  done  so  the  title  will  not  pass 
until  the  act  is  performed  or  its  performance  has  been  waived.2 


§547. 


How  determined. —  Whether  the  srivino-  .of  the 


note  or  other  security  is  to  be  a  condition  precedent  is  here,  as 
in  the  former  case,  usually  a  question  of  fact,  if  the  parties  have 


i  Mathews  v.  Cowan  (1871),  59  111. 
341;  Hodgson  v.  Barrett  (1877),  33 
Ohio  St.  63,  31  Am.  E.  527;  Canadian 
Bank  v.  McCrea  (1882),  106  111.  281; 
Peoria  &  Pekin  Un.  Ry.  Co.  v.  Buck- 
ley (1885),  114  111.  337;  National  Bank 
of  Commerce  v.  Chicago,  etc.  R.  Co. 
(1890),  44  Minn.  224,  46  N.  W.  R.  342, 
560,  20  Am.  St.  R.  566;  John son-Br ink- 
man  Com.  Co.  v.  Central  Bank  (1893), 
116  Mo.  558,  22  S.  W.  R.  813,  38  Am. 
St.  R.  615. 

-  Whitney  v.  Eaton,  15  Gray  (Mass.), 
225;  Bainbridge  v.  Caldwell,  4  Dana 
(Ky),  211;  Young  v.  Kansas  Mfg.  Co., 
23  Fla.  394;  Towne  v.  Davis,  66  N.  H. 
396,  22  Atl.  R.  450;  Harris  v.  Smith 
(1817),  3  S.  &  R.  (Pa.)  20;  Tyler  v.  Free- 
man (1849),  3  Cush.  (Mass.)  261 ;  Hill  v. 
Freeman,  3  id.  257;  Coggill  v.  Hart- 
ford, etc.  R.  Co.  (1854),  3  Gray  (Mass.), 
545;  Hirschorn  v.  Canney  (1867),  98 


Mass.  149;  Armour  v.  Pecker  (1877), 
123  Mass.  143;  Salomon  v.  Hathaway 
(1879),  126  Mass.  482;  Kenney  v.  Ingalls, 
126  id.  488;  Van  Duzor  v.  Allen  (1878), 
90  111.  499;  Peabody  v.  Maguire  (1887), 
79  Me.  572;  Russell  v.  Minor  (1838), 
22  Wend.  (N.  Y.)  659;  Osborn  v.  Gantz 
(1875),  60  N.  Y.  540:  Empire  State  Type 
Founding  Co.  v.  Grant,  114  N.  Y.  40, 
21  N.  E.  R.  49;  Adams  v.  Roscoe  Lum- 
ber Co.  (1899),  159  N.  Y.  176,  53  N.  E. 
R.  805.  In  Nicholson  v.  Taylor  (1858), 
31  Pa.  St.  128,  an  estimated  amount 
of  lumber  was  sold  at  a  certain  price 
per  thousand,  to  be  paid  for  by  a  note 
at  six  months.  The  lumber  had  to 
be  measured  before  the  exact  price 
could  be  determined  and  the  note 
drawn,  and  no  time  was  set  for  the 
measuring.  The  court  held  that  these 
facts  showed  that  the  contract  was 
executory. 


456 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§   54^,  549. 

not  made  their  intention  clear; !  and,  if  it  were  a  condition,  the 
question  whether  or  not  its  performance  has  been  waived  is 
likewise  for  the  jury.2 

§  548»  Consideration  for  the  condition. —  The  consideration 
for  the  condition,  whether  express  or  implied,  is  ordinarily 
found  in  the  same  acts  or  events  which  supply  the  considera- 
tion for  the  remainder  of  the  contract.  "Where,  however,  the 
property  has  once  been  unconditionally  sold  and  delivered,  a 
subsequent  agreement  annexing  conditions  is  without  consid- 
eration and  void.3 

§  549.  Waiver  of  the  condition  of  payment  or  secu- 
rity.—  But  as  this  condition  of  payment  or  security,  whether 
express  or  implied,  is,  as  has  been  seen,  for  the  benefit  of  the 
seller,  he  may  waive  it  if  he  so  elects.  This  waiver,  like  the 
condition  itself,  may  be  either  express  or  implied.  Where  it 
is  express,  no  doubt  of  course  can  arise  as  to  its  existence ;  but 
it  need  not  be  express,  and  can  be  inferred  from  acts  and  cir- 
cumstances. Delivery  of  the  goods  without  insisting  upon  the 
performance  of  the  condition  may  be  such  an  act.  Hence  it 
is  well  settled  that  an  absolute  and  unconditional  delivery  of 
the  goods  without  requiring  payment,  or  the  giving  of  the  se- 
curity, is  to  be  deemed  a  waiver  of  payment  as  a  condition 
precedent  or  concurrent;4  and,  in  any  case,  a  voluntary  de- 

1  Empire  State  Type  Founding  Co.  114  N.  Y.  40;  Chapman  v.  Lathrop,  6 

v.  Grant,  114  N.  Y.  40,  21  N.  E.  R.  49;  Cow.  (N.  Y.)  110,   16  Am.   Dec.  4:3:3; 

Towne  v.  Davis,  66  N.  H.  396,  22  Atl.  Scudder  v.  Bradbury,  106  Mass.  422; 

R.  450.  Goodwin  v.  Railroad  Co.,  Ill  Mass. 

2Silsby  v.  Boston  &  Albany  R.  Co.  487;  Freeman  v.  Nichols,  116  Mass. 

(1900),  176  Mass.  158,  57  N.  E.  R.  376.  309;  Haskins   v.   Warren.  115  Mass. 

s  Merrill  Furniture  Co.  v.  Hill  (1894),  514;  Smith  v.  Dennie,  6  Pick.  (Mass.) 

87  Me.  17,  32  Atl.  R.  712;  Domestic  262,    17   Am.    Dec.    368;    Warder   v. 

Sewing  Mach.  Co.  v.  Anderson  (1876),  Hoover,   51    Iowa,    491;    Scharff    v. 

23  Minn.   57.     See    also    Houser    &  Meyer,  133  Mo.  428,  34  S.  W.  R.  858; 

Haines  Mfg.  Co.  v.  Hargrove  (1900),  Lewenberg  v.  Hayes,  91  Me.  104.  39 

129  Cal.  90,  61  Pac.  R.  660.  Atl.  R.  469:    Freeport  Stone  Co.   v. 

'Fishback  v.  Van  Dusen  (1885),  33  Carey,  42  W.  Va.  276,  26  S.  E.  R.  183; 

Minn.  Ill;  Pinkham  v.  Appleton,  82  Neal  v.  Boggan,  97  Ala.  611,  11  S.  R. 

Me.  574;  Empire  State  Co.  v.  Grant,  809;    England    v.   Forbes,    7   Houst. 

457 


§  549.] 


LAW    OF    SALE. 


[BOOK    II. 


livery  without  requiring  such  payment  or  security  is  strong 
evidence  of  a  waiver,  particularly  where  the  rights  of  third  per- 
sons have  intervened  based  upon  such  delivery.  Still,  whether, 
in  fact,  under  all  the  circumstances,  there  has  been  a  waiver  is 
a  question  for  the  jury.1 


(Del.)  301,  31  Atl.  R  895;  Merrill 
Furniture  Co.  v.  Hill,  87  Me.  17,  32 
Atl.  R.  712;  Oester  v.  Sitlington,  115 
Mo.  247,  21  S.  W.  R.  820;  Wheeler  & 
Wilson  Mfg.  Co.  v.  Bank,  105  Ga..57, 
31  S.  E.  R.  48. 

In  Fishback  v.  Van  Dusen  (1885),  33 
Minn.  Ill,  22  N.  W.  R.  244,  it  is  said: 
"The  doctrine  is  uniform  and  well  es- 
tablished that  if  the  vendor  unquali- 
fiedly and  unconditionally  delivers 
the  goods  to  the  vendee  without  in- 
sisting on  performance  of  conditions, 
intending  to  rely  solely  on  the  per- 
sonal responsibility  of  the  vendee,  the 
title  passes  to  the  latter,  and  the 
vendor  cannot  afterwards  reclaim 
the  property,  even  if  the  condition  is 
never  performed.  His  only  remedy  is 
upon  the  contract  for  the  purchase- 
money.  2  Kent,  *496;  Benj.  Sales, 
§  320,  note  d;  Carlton  v.  Sumner,  4 
Pick.  516;  Smith  v.Dejinie,  6  Pick.  262, 
17  Am.  Dec.  368;  Dresser  Mfg.  Co.  v. 
Waterston,  3  Met.  9;  Farlow  v.  Ellis, 
15  Gray,  229;  Goodwin  v.  Railroad 
Co.,  Ill  Mass.  487;  Scudder  v.  Brad- 
bury, 106  Mass.  422;  Haskins  v.  War- 
ren, 115  Mass.  514;  Freeman  v.  Nich- 
ols, 116  Mass.  309;  Bowen  v.  Burk,  13 
Pa.  St.  146;  Mixer  v.  Cook.  31  Me.  340. 
The  weight  of  authority  seems  to  be 
that  a  delivery,  apparently  unre- 
stricted and  unconditional,  of  goods 
sold  for  cash,  is  presumptive  evi- 
dence of  the  waiver  of  the  condition 
that  payment  should  be  made  on  de- 
livery in  order  to  vest  the  title  in  the 
purchaser.  Scudder  v.  Bradbury,  106 
Mass. 422;  Upton  v.  Sturbridge  Cotton 


Mills,  111  Mass.  446;  Hammett  v.  Lin- 
neman,  48  N.  Y.  399;  Smith  v.  Lynes, 
5  N.  Y.  41;  Farlow  v.  Ellis,  supra." 

1  Fishback  v.  Van  Dusen,  supra; 
Young  v.  Kansas  Mfg.  Co.  (1887),  23 
Fla.  394  [citing  Whitney  v.  Eaton,  15 
Gray  (Mass.),  225;  Farlow  v.  Ellis, 
15  Gray,  229;  Armour  v.  Pecker,  123 
Mass.  143;  Salomon  v.  Hathaway, 
126  Mass.  482];  Peabody  v.  Maguire 
(1887),  79  Me.  572. 

Asking  for.  and  being  promised,  se- 
curity, which  is  not  given,  is  not  a 
waiver  of  the  condition.  Sargent  v. 
Metcalf,  5  Gray  (Mass.),  306,  66  Am. 
Dec.  368.  A  contract  for  the  sale  of 
three  hundred  barrels  of  flour  to  be 
delivered  in  lots  of  one  hundred  bar- 
rels each,  each  lot  to  be  paid  for  on 
delivery,  is  severable,  and  delivery 
and  receipt  of  payment  for  the  last 
two  lots  do  not  constitute  a  waiver 
of  any  rights  of  the  seller  arising  out 
of  the  unauthorized  delivery  of  the 
first  lot  by  a  railroad  company  to  the 
purchaser  without  payment.  Sawyer 
v.  Railway  Co.,  22  Wis.  402,  99  Am. 
Dec.  49. 

The  fact  that  the  seller  loaded  the 
goods  into  cars,  in  pursuance  of  his 
contract,  is  not  a  waiver.  Globe  Mill- 
ing Co.  v.  Minneapolis  Elevator  Co., 
44  Minn.  153,  46  N.  W.  R.  306.  Nor 
the  fact  that  the  seller  helped  the 
buyer  to  put  them  into  cars,  where, 
under  the  contract,  they  were  to  be 
paid  for.  Meeker  v.  Johnson,  3  Wash. 
247,  28  Pac.  R.  542. 

But  knowingly  to  mark  logs  with 
the  log-mark  of  the  purchaser  —  rec- 


458 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC    CHATTELS.       [§§  550,  551. 

§  550.  Delivery  to  carrier  as  waiver.— An  uncondi- 
tional delivery  of  the  goods  to  a  carrier  for  transportation  to 
the  buyer  is  just  as  effectual  to  waive  the  condition  as  a  per- 
sonal delivery  to  the  buyer.  Such  a  delivery  is  equivalent  to 
a  delivery  to  the  purchaser,  subject  to  the  right  of  stoppage 
in  transitu.  If,  in  such  a  case,  the  seller  desires  to  retain  the 
jus  disponendi,1  he  must  do  it  by  taking  the  bill  of  lading  in 
his  own  name,  or  in  some  other  similar  manner  indicating  his 
intention  not  to  pass  the  title  until  payment ;  otherwise  the 
title  passes  and  the  condition  is  waived.2 

§  551.  Further  of  waiver.— It  is  not  necessarily  to  be 

inferred,  where  a  conditional  bargain  has  been  made  and  a  de- 
livery has  immediately  taken  place  upon  the  expectation  that 
the  promised  payment  or  security  will  shortly  be  given,  that 
the  sale  ipso  facto  becomes  absolute.  There  is  always  an  im- 
plied understanding  that  the  vendee  is  acting  honestly  and  that 
he  takes  the  goods  subject  to  the  contract.  It  is  not  necessary, 
therefore,  that  the  vendor  shall  in  express  terms  declare  that  he 
makes  the  delivery  conditional;  it  is  sufficient  if  the  intent  of 
the  parties  that  the  delivery  is  conditional  can  be  inferred  from 
their  acts  and  the  circumstances  of  the  case.3  Waiver  is  the 
voluntary  relinquishment  of  some  right  which,  but  for  such 
waiver,  the  party  would  have  enjoyed.  Voluntary  choice  is  of 
the  essence  of  waiver,  and  not  mere  negligence,  though  from 

ognized  by  the  laws  of  the  State  as  'See  post,  ch.  VI,  on  Reservation 

the    indicia    of    ownership  —  is    a  of  Jus  Disponencli. 

waiver.     Hance  v.  Boom  Co.  (1888),  2Scharff  v.  Meyer  (1895),  133  Mo. 

70  Mich.  227,  38  N.  W.  R.  228.  428,  34  S.  W.  R.  858,  54  Am.  St.  R. 

Ratification.—  Where  there  was  a  672. 

sale  for  cash,  but  the  vendee  ob-  "  Smith  v.   Dennie  (1828),  6  Pick. 

tained  the  goods  without  payment,  (Mass.),  262,  17  Am.  Dec.  368;  Fish- 

andthen  sold  them  to  another,  and  back  v.  Van  Dusen,  33  Minn.  Ill; 

the  first  seller  with  full  knowledge  Leven  v.  Smith,  1  Denio  (N.  Y.),  571; 

took  a  note  from  the  last  purchaser  Peabody  v.  Maguire,  79  Me.  572;  Mer- 

for  the  price,   this    constitutes    an  rill  Furn.  Co.  v.  Hill,  87  Me.  17,  32 

abandonment  of  the  sale  as  for  cash  Atl.  R.  712;  Farlow  v.  Ellis,  15  Gray 

and  ratines  the  disposition  made  of  (Mass.),  229:  Paul  v.  Reed,  52  N.  H. 

the  goods.    Bullard  v.  Bank  of  Madi-  136. 
son  (1899),  107  Ga.  772,  33  S.  E.  R.  684. 

459 


§§  552-554.]  law  of  sale.  [book  it. 

such  negligence,  if  unexplained,  an  intention  to  waive  may  be 
inferred. 

§  552.  .  The  important  question,  therefore,  is:  Has  the 

vendor  manifested,  by  his  language  or  conduct,  an  intention  or 
willingness  to  waive  the  condition,  and  make  the  delivery  un- 
conditional, and  the  sale  absolute,  without  having  received  pay- 
ment or  the  performance  of  the  conditions  of  the  sale  ?  This 
must  depend  upon  the  intent  of  the  parties  at  the  time,  to  be 
ascertained  from  their  conduct  and  language,  and  not  from  the 
mere  fact  of  delivery  alone.  Whether  there  has  been  a  waiver 
is  a  question  of  fact.  It  may  be  proved  by  various  species  of 
evidence :  by  declarations,  by  acts,  or  by  forbearance  to  act. 
But  however  proved,  the  question  is:  Has  the  vendor  volun- 
tarily and  unconditionally  delivered  the  goods  without  intend- 
ing to  claim  the  benefit  of  the  condition?1 


|  553.  .  No  secret  or  undisclosed  intention  of  the  seller 

is  sufficient  of  itself  to  make  a  delivery  conditional;2  and  where 
the  delivery  is  absolute  and  unconditional,  usage  alone  cannot 
operate  to  defeat  its  effect  as  a  waiver.3 

§  554.  Goods  may  be  retaken  if  condition  not  performed. 

"Where  payment  of  the  purchase-money,  or  the  giving  of  secu- 
rity for  it,  is  thus  expressly  or  impliedly  a  condition  precedent 
to  the  passing  of  the  title,  and  the  making  of  the  payment  or 
the  giving  of  the  security  is  omitted,  evaded  or  refused  by  the 
purchaser  upon  obtaining  possession  of  the  goods,  the  delivery 
is  deemed  to  be  conditional,  and  the  seller  may  immediately 
reclaim  and  recover  the  goods  themselves  or  their  value  in 

i  Fishback  v.  Van  Dusen,  supra;  Elevator  Co.,  44  Minn.  153,  46  N.  W. 

Carleton  v.  Sumner,  4  Pick.  (Mass.)  R.  306;  Silsby  v.  Boston  &  Albany 

516;  Smith  v.  Dennie,  supra;  Fuller  R.  Co.,  176  Mass.  158,  57  N.  E.  R.  376. 

v.  Bean.  34  N.  H.  290;  Hammett  v.  2  Fishback   v.  Van  Dusen,  supra; 

Linneman,  48  N.  Y.  399;  Peabody  v.  Upton  v.   Sturbridge   Cotton  Mills, 

Maguire,  supra;  Stone  v.  Perry,  60  111  Mass.  446:  Haskins  v.   Warren, 

Me.   48;  Seed  v.   Lord,   66  Me.   580;  115  Mass.  514;  West  v.  Piatt,  127  Mass. 

Smith  v.  Lynes.  5  N.  Y.  41 ;  Farlow  367. 

v.  Ellis,  supra;  Globe  Milling  Co.  v.  3  Haskins  v.  Warren,  115  Mass.  514. 

460 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  555. 


trover,  either  from  the  original  purchaser1  or  from  any  one 
claiming  title  through  or  under  him,2  though  it  is  said  that,  at 
least  in  the  case  of  an  implied  condition,  a  waiver  of  the  con- 
dition will  be  more  readily  inferred  for  the  protection  of  the 
sub-vendee.3 

§  555.  Even  from  bona  fide  purchaser. —  Thus,  where 

goods  were  sold  and  delivered  to  be  paid  for  in  cash  on  deliv- 
ery, and  the  purchaser  gave  the  seller  a  check  which  was  dis- 
honored on  presentation,  it  was  held  that  the  seller  might  re- 
take the  goods,4  if  he  had  done  nothing  to  estop  himself,  even 
from  an  innocent  sub-vendee  for  value.5     And  the  rip-ht  to  re- 


1  Whitwell  v.Vincent  (1827),  4  Pick. 
(Mass.)  449,  16  Am.  Dec.  355;  Reed  v. 
Upton  (1830),  10  Pick.  (Mass.)  522,  20 
Am.  Dec.  545;  Barrett  v.  Pritchard 
(1824),  2  Pick.  512,  13  Am.  Dec.  449; 
Fishback  v.  Van  Dusen  (1885).  33 
Minn.  Ill ;  Peabody  v.  Maguire  (1887), 
79  Me.  572;  Ferguson  v.  Clifford,  37 
N.  H  86:  Bain  bridge  v.  Caldwell,  4 
Dana  (Ky.),  213;  Wabash  Elevator 
Co.  v.  First  Nat.  Bank,  23  Ohio  St. 
311;  Bauendahl  v.  Horr,  7  Blatchf. 
(U.  S.  C.  C.)  548;  Harding  v.  Metz,  1 
Tenn.  Ch.  610;  Thorpe  v.  Fowler,  57 
Iowa,  541;  Paul  v.  Reed,  52  N.  H.  136; 
Dows  v.  Kidder,84  N.  Y.  121;  Evans- 
ville,  etc.  R.  Co.  v.  Erwin,  84  Ind. 
457;  Harris  v.  Smith,  3  Serg.  &  R. 
(Pa.)  20;  Morris  v.  Rexford,  18  N.  Y. 
552. 

2  In  National  Bank  of  Commerce 
v.  Chicago,  B.  &  N.  R.  Co.  (1890),  44 
Minn.  224,  46  N.  W.  R.  342,  560,  20 
Am.  St.  R.  566,  it  is  said:  "It  is 
urged  that  a  different  rule  applies 
where,  intermediately,  the  property 
has  been  purchased  by  an  innocent 
sub-vendee  for  value.  The  general 
rule  is  that  a  title,  like  a  stream, 
cannot  rise  higher  than  its  source, 
and  it  is  difficult  to  see  how  a  person 
can  communicate  a  better  title  than 


he  himself  has,  unless  some  principle 
of  equitable  estoppel  comes  into 
operation  against  the  person  claim- 
ing under  what  would  otherwise  be 
the  better  title.  We  have  found  no 
case  holding  that  any  different  rule 
obtains  in  cases  like  the  present,  as  to 
a  sub-vendee,  than  as  to  the  original 
purchaser,  except  perhaps  that,  as  to 
the  former,  a  waiver  of  the  condi- 
tion, as,  for  example,  of  payment  on 
delivery,  will  be  more  readily  in- 
ferred from  the  delivery,  especially 
when  the  condition  is  not  express 
but  implied.  See  Benjamin  on  Sales, 
Am.  note  269;  Coggill  v.  Railroad  Co., 
3  Gray,  545;  Hirschorn  v.  Canney,  98 
Mass.  149;  Armour  v.  Pecker,  123 
Mass.  143." 

'National  Bank  v.  Railroad  Co., 
supra. 

4  National  Bank  v.  Railroad  Co., 
supra:  Hodgson  v.  Barrett  (1877),  33 
Ohio  St.  63,  31  Am.  R.  527;  Johnson- 
Brinkman  Com.  Co.  v.  Central  Bank 
(1893),  116  Mo.  558,  22  S.  W.  R.  813,  38 
Am.  St.  R.  615;  Canadian  Bank  v. 
McCrea  (1882),  106  I1L  281;  Peoria  & 
Pekin  Un.  Ry.  Co.  v.  Buckley  (1885), 
114  111.  337;  Mathews  v.  Cowan  (1871), 
59  III.  341. 

5  National    Bank   v.  Railroad   Co., 


461 


§§  556-558.]  law  or  sale.  [book  ii. 

cover  the  goods  has  been  sustained  where  the  purchaser  was 
to  give  an  indorsed  note,  or  a  mortgage  or  other  security  for 
the  price,  which  he  failed  or  refused  to  do.1 

§  556.  And  clearly  from  attaching  creditors,  etc.— 

The  right  to  retake  extends  also  a  fortiori  as  against  the  cred- 
itors of  the  purchaser  who  have  seized  the  goods  for  debts  due 
themselves,2  and  against  the  purchaser's  assignee  in  bank- 
ruptcy.3 

§  557.  Usage  does  not  defeat.—  This  right  of  the  seller 

to  reclaim  his  goods  is  one  which  cannot  be  defeated  by  any 
local  usage.4 

2.  Payment  of  Price  as  Express  Condition  Precedent  to  Pass- 
ing of  Title,  and  Herein  of  So-called  "Conditional  Sales  " 
or  "  Instalment  Contracts." 

§  558.  Formal  contracts  of  so-called  "conditional  sales." 

The  contracts  of  sale  conditioned  upon  payment  which  have 
thus  far  been  considered  have  been  those  in  which,  either  ex- 
pressly or  impliedly,  the  payment  was  to  be  made  at,  or  shortly 
after,  the  delivery  of  the  goods,  no  extended  period  of  credit 
being  contemplated  or  agreed  upon. 

The  exigencies  of  business,  however,  have  given  rise  to  an 
entirely  different  class  of  contracts,  to  which  the  term  "  con- 

supra.    See  also  Andrew  v.  Dieter-  against  the  vendee,  but  also  against 

ich  (1835),  14  Wend.  (N.  Y.)  31  (but  as  his  creditors,  claiming  to  hold  them 

to  this  case  see  3   Barb.    Ch.  451);  under  attachments.    Everett  v.  Hall, 

Adams  v.  Roscoe  Lumber  Co.  (1899),  67  Me.  498;  Brown  v.  Haynes,  52  Me. 

159  N.  Y.  176,  53  N.  E.  R.  805.  580."    Peabody  v.  Maguire,   79  Me. 

i  Whitwell  v.Vincent  (1827),  4  Pick.  572. 

(Mass.)  449, 16  Am.  Dec.  355;  Davison  3  Rogers  v.  Whitehouse  (1880),  71 

v.  Davis  (1887),  125  U.  S.  90;  Sargent  Me.  222;.  Ballantyne  v.  Appleton,  82 

v.  Metcalf,  5  Gray  (Mass.),  306,  66  Am.  Me.  570,  20  Atl.  R.  235;  Whitney  v. 

Dec.   368;    Leatherbury    v.    Connor  Eaton  (1860),  15  Gray  (Mass.),  225. 

(1891),  54  N.  J.  L.  172.  4  Globe  Milling  Co.  v.  Elevator  Co., 

2  Mack  v.  Stoiy  (1889),  57  Conn.  407.  44  Minn.  153,  46  N.  W.  R.  306;  Silsby 

"The  vendor  has  a  right  to  repossess  v.  Boston  &  Albany  R.  Co.  (1900),  178 

himself  of  the  goods,   not  only   as  Mass.  158,  57  N.  E.  R.  376. 

462 


CH.  III.]      CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§  559,  560. 

ditional  sale"  has  been  popularly  applied,  and  which  contem- 
plate a  delivery  of  the  goods  to  the  prospective  purchaser  upon 
a  more  or  less  extended  term  of  credit,  subject  nevertheless  to 
the  condition  that  the  title  shall  remain  in  the  vendor  until  the 
price  is  paid.  The  price,  moreover,  is  frequently  made  payable 
in  instalments,  and  from  this  fact  the  term  "instalment  con- 
fcract"  is  often  applied  to  these  agreements.  Their  purpose  is 
to  facilitate  sales  and  purchases  upon  credit,  and  especially  to 
avoid  the  publicity  and  statutory  regulation  of  chattel  mort- 
gages. 

§  550.  Confusion  respecting  the  name. —  It  will  be  evident 
to  any  one  who  has  occasion  to  examine  the  cases  that  the  term 
"conditional  sale"  has  been  indiscriminately  applied  to  a  great 
variety  of  differing  transactions,  and  that  much  confusion  has 
resulted  therefrom.  It  will  be  further  evident  that  this  con- 
fusion is  the  legitimate  result  and  natural  consequence  of  the 
ill-advised  efforts  of  the  framers  of  these  agreements  to  make 
them  appear  to  be  what  they  are  not;  and  that  by  their  very 
efforts  to  force  a  particular  appearance  upon  such  agreements 
without  construction,  they  have  most  effectually  invited  and 
required  the  application  of  legal  rules  of  construction  to  arrive 
at  their  true  intent.  In  applying  these  rules  here,  as  in  other 
cases  in  which  intent  is  to  be  sought  after,  different  courts  will 
inevitably  come  to  different  conclusions  often  in  respect  to  in- 
struments substantially  alike. 

§  560.  What  is  a  conditional  sale. —  It  will  be  evident  also 
that  confusion  has  arisen   from  the  use  of  words  in  different 

senses.  What  is  meant  by  the  term  "conditional  sale?"  In 
order  to  answer  this  question,  it  is  necessary  to  determine  first 
what  is  meant  by  the  word  "sale."  As  has  been  seen  in  the 
opening  sections  of  this  work,  the  word  "sale,"  in  actual  use, 
is  not  a  word  of  precise  Legal  import.  It  is  constantly  being 
used  to  mean  either  the  actual  transfer  of  the  title,  or  the  agree- 
mentto  transfer  the  title.  If  the  first  meaning  be  adopted,  then 
obviously  the  only  conditional  sale  possible  is  the  present  trans- 

463 


§  561.]  LAW  OF  SALE.  [BOOK  II. 

fer  subject  to  be  defeated  by  a  condition  subsequent.  If,  on 
the  other  hand,  the  second  definition  be  adopted,  a  conditional 
sale  is  a  conditional  contract  to  convey,  and  the  condition  will 
usually,  if  not  always,  be  a  condition  precedent. 

This  is  more  than  a  mere  dispute  about  words,  because  it  will 
be  seen  that  substantial  differences  in  result  ensue  according  as 
the  one  view  or  the  other  is  adopted. 

|  561.  What  varieties  are  possible.—  The  very  nature 

of  the  case  shows  that  these  various  forms  of  agreement  are 
usually  intended  to  be  bargainings  about  sales  to  be  made,  and 
not  perfect  and  completed  sales  in  themselves.  The  question 
then  is:  "What  forms  of  agreement  may  there  be  amounting  to 
less  than  a  present  unconditional  and  perfect  sale  ?  The  an- 
swer to  this  is  plain: 

1.  There  may  be  the  ordinary  agreement,  on  the  one  part  to 
sell,  and  on  the  other  part  to  buy,  a  particular  chattel.  Here 
the  seller  is  entitled  to  keep  the  chattel  until  the  other  party 
pays  for  it. 

2.  There  may  be  the  ordinary  executory  agreement  above 
mentioned,  and  annexed  to  it  a  voluntary  delivery  of  the  prop- 
erty to  the  prospective  purchaser  to  be  kept  by  him  as  the 
property  of  the  seller  until  he  demands  it,  if  not  sooner  paid 
for.     This  is  the  executory  agreement,  plus  a  bailment. 

3.  There  may  be  the  executory  agreement  as  before,  but  as 
part  of  it  an  express  or  implied  agreement  that  the  seller  shall 
deliver  the  chattel  to  the  prospective  buyer  to  be  kept  and 
used  by  him  until  he  makes  default  in  his  performance  of  the 
agreement  (at  which  time  the  seller  may  resume  possession), 
the  title  to  the  chattel  remaining  nevertheless  in  the  seller 
until  the  price  is  paid. 

4.  There  may  be  a  present  transfer  of  the  title  and  of  the  pos- 
session, subject  to  a  right  in  the  seller  to  rescind  the  transfer, 
and  have  back  the  title  and  possession  upon  default  in  payment. 

5.  There  may  be  a  present  transfer  of  title  and  possession, 

reserving  a  lien  upon  the  chattel  as  security  for  the  payment 

of  the  price. 

464 


CH.  III.]       CONDITIONAL    SALE  OF  SPECIFIC  CHATTELS.       [§§  562-5G4. 

6.  There  may  also  be  a  present  transfer  of  title  and  posses- 
sion, and  a  formal  chattel  mortgage  taken  by  the  seller  to 
secure  payment. 

§  562.  .    Of  these,  the  first  is  clearly  not  within  the 

class  now  being  considered. 

The  second  and  third  are  in  many  respects  alike,  but  the  third 
has  the  additional  feature  that  the  purchaser  acquires  by  the 
contract  a  right  to  the  possession  of  the  chattel  of  which  he 
can  only  be  deprived  upon  a  default  in  pursuance  of  the  pro- 
visions of  the  contract. 

The  fourth  is  the  true  conditional  sale,  i.  e.,  a  present  sale 
subject  to  defeat  upon  a  condition  subsequent. 

The  fifth  and  sixth  are  alike  in  their  result;  the  former  being 
an  informal  mortgage  and  the  latter  a  formal  one. 

The  second  and  third  are  the  kinds  of  agreement  ordinarily 
meant  by  the  popular  use  of  the  term  "  conditional  sale,"  but 
the  cases  are  numerous  where  courts  have  used  the  same  term 
meaning  sometimes  an  agreement  of  the  second  or  third  kind, 
and  sometimes  one  of  the  fourth. 

§  563.  What  here  meant  by  conditional  sale. — Adopt- 
ing for  the  present  the  popular  signification  of  the  term,  it  is 
of  agreements  of  the  second  and  third  kinds,  namely,  exec- 
utory contracts  of  sale  accompanied  by  a  delivery  of  the  chat- 
tel to  the  purchaser  to  be  held  by  him  pending  payment,  either 
at  the  will  of  the  seller  or  Until  default  in  performance  by  the 
buyer  of  some  term  of  the  agreement,  the  title,  however,  being 
reserved  by  the  seller  until  payment  by  the  purchaser  —  that 
it  is  now  proposed  to  treat. 

§  564.  Validity  and  form  of  <s  conditional  sales."  —  These 
contracts  of  "  conditional  sale  "  are  entirely  lawful,1  unless  pro- 
hibited by  statute,  and  they  may,  in  general,  take  such  form 

1  See  Warren   v.   Liddell,  110  Ala.    Dewes  Brewery  Co.   v.   Merritt,  82 

232,  20  S.  R.  89;  Rodgers  v  Bachman,    Mich.  198,  46  N.  W.  R.  379;  Cooley  v. 

109 Cal.  552,  42Pac.R448;  Van  Allen    Gillan,  54  Conn.  80,    6  Atl.  R.  180; 

v.  Francis,  123  Cal.  474, 56  Pac.  R  339;    Steele  v.  Aspy,  128  Ind.  367,  27  N.  E. 

30      •  465 


564.] 


LAW    OF   SALE. 


[BOOK    II. 


as  the  parties  see  fit  to  give  them.1  They  are  not  required  to 
be  in  writing,2  nor  are  they  required  to  be  filed  or  recorded,'' 
unless  a  statute,  as  now  in  many  States,4  declares  otherwise. 

It  is,  however,  essential  that  a  reservation  of  the  title  shall 
appear;  for  the  parties  may  intend  to  reserve  the  title  in  the 
seller  and  yet  so  frame  their  agreement  as  not  to  accomplish 
this  purpose,5  or  such  a  reservation  may  have  been  originally 


R.  739;  Morse  v.  Sherman,  100  Mass. 
430;  Harkness  v.  Russell,  118  U.  S. 
663;  Bradshaw  v.  Thomas,  7  Yerg. 
(Tenia.)  497;  Edgewood  Distilling  Co. 
v.  Shannon,  60  Ark.  133,  29  S.  W.  R. 
147;  McGinn  is  v.  Savage,  29  W.  Va. 
362;  Edison  Gen'l  Elec.  Co.  v.  Walter, 
10  Wash.  14,  38  Pac.  R.  752;  Hirsch 
v.  Steele,  10  Utah,  18,  36  Pac.  R.  49, 
and  the  many  cases  cited  in  follow- 
ing sections. 

1  See  Rodgers  v.  Bachman,  supra; 
Edgwood  Distilling  Co.  v.  Shannon, 
supra;  Edison  Gen'l  Electric  Co.  v. 
Walter,  supra;  Page  v.  Edwards,  64 
Vt.  124,  23  Atl.  R.  917.  Condition 
printed  upon  the  back  of  a  note  and 
referred  to  in  it  is  sufficient.  Sey- 
mour v.  Farquhar,  93  Ala.  292. 

2Benner  v.  Puffer,  114  Mass.  376; 
Mclver  v.  Williams,  83  Wis.  570,  53 
N.  W.  R.  847;  Wise  v.  Collins,  121  Cal. 
147,  53  Pac.  R.  640. 

3  Warren  v.  Liddell,  110  Ala.  232,  20 
S.  R.  89;  Campbell  Printing  Press  Co. 
v.  Walker,  22  Fla.  412.  Are  not  chat- 
tel mortgages  within  the  acts  requir- 
ing such  instruments  to  be  filed  or 
recorded.  Kimball  Co.  v.  Mellon,  80 
Wis.  133,  48  N.  W.  R.  1100;  McConab 
v.  Donald,  82  Va.  903;  Lima  Mach. 
Works  v.  Parsons,  10  Utah,  105,  37 
Pac.  R.  244.  Though  where  the  nego- 
tiations amount  to  a  chattel  mort- 
gage in  fact,  it  is  void  if  not  in  writ- 
ing in  Texas.  Harrold  v.  Barwise,  10 
Tex.  Civ.  App.  138,  30  S.  W.  R.  498; 


Lazarus  v.  Bank,  72  Tex.  354, 10  S.  W. 
252. 

4  These  statutes  are  referred  to 
post,  §  603,  note. 

5  Thus,  as  will  be  more  fully  seen  in 
later  sections,  though  the  parties 
may  have  intended  to  make  a  con- 
ditional sale,  the  true  construction  of 
their  words  and  conduct  may  show 
that  they  have  made  an  absolute 
sale,  reserving,  perhaps,  a  lien  upon 
the  goods  but  not  the  title  to  them; 
as  in  Aultman  v.  Silha,  85  Wis.  359, 
55  N.  W.  R.  711;  Andrews  v.  Colorado 
Savings  Bank,  20  Colo.  313,  36  Pac.  R. 
902, 46  Am.  St.  R.  291 ;  Arkansas  Cattle 
Co.  v.  Mann,  130  U.  S.  69;  Beardsley 
v.  Beardsley,  138  U.  S.  262;  First  Nat. 
Bank  v.  Cook  Carriage  Co.,  70  Miss. 
587;  Palmer  v.  Howard,  72  Cal.  293, 
13  Pac.  R.  858,  1  Am.  St.  R.  60.  Other 
illustrations  are  given  in  later  notes. 

In  Silver  Bow  Mining  Co.  v.  Lowry, 
6  Mont.  288,  the  contract  was  in  form 
one  of  conditional  sale,  but  a  note 
was  taken  for  the  price  secured  by 
mortgage  upon  other  property,  and 
this  was  held  toi'ender  the  sale  abso- 
lute. 

But  the  fact  that  a  printed  form 
clearly  of  conditional  sale  has  at- 
tached to  it  a  typewritten  "rider" 
providing  for  a  mortgage  upon  the 
chattels  to  secure  the  payment  of 
the  price  does  not  defeat  its  char- 
acter as  a  conditional  sale.  Edison 
Gen'l    Electric    Co.    v.    Walter,    10 


466 


CII.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  565. 

contemplated  and  yet  have  been  subsequently  waived  or  ig- 
nored. 

If  the  whole  agreement  is  in  writing,  its  construction  will  be 
for  the  court,  aided  by  such  extrinsic  circumstances  as  throw 
light  upon  the  intention;1  but  where  the  intention  is  to  be 
gathered  from  words  and  conduct,  the  question  is  pre-eminently 
for  the  jury.2 

§  565.  Contract  in  form  absolute  shown  to  be  condi- 
tional.—  Even  though  the  delivery  was  accompanied  by  a  bill 
of  sale  apparently  absolute,  the  transaction  may  be  shown  to 
have  been  conditional;3  and  parol  evidence  is  admissible  for 
this  purpose  as  between  the  original  parties  or  others  having 
notice,  though  not,  of  course,  as  against  l>ona  fide  purchasers 
for  value.4 

So,  though  the  delivery  and  sale  were  at  first  absolute,  it 
may,  upon  sufficient  consideration,  be  subsequently  made  con- 
ditional; and  while  the  Avhole  transaction  still  remains  execu- 
tory, a  sale  originally  intended  to  be  absolute  may  by  agreement 
be  made  conditional.5 

Wash.  14,  38  Pac.  R.  752.    See  also  ing  creditors  who  have  relied  upon 

Page  v.  Edwards,  64  Vt.  124,  23  Atl.  its  absolute  appearance  in   making 

R.  917.  their  attachments.  Dixon  v.  Blondin. 

1  Palmer  v.   Howard,  supra;  An-  58  Vt.  689;  Sanborn  v.  Chittenden,  27 

drews    v.    Colorado   Savings    Bank,  Vt.  171.     Where  seller  gave  an  abso- 

supra;  Aultman  v.  Silha,  supra.  lute  bill  of  sale  he  will  not  be  per- 

2Scudder  v.  Bradbury,  105  Mass.  niitted.  say  the  court  in  Connecticut, 
422;  Armour  v.  Pecker,  123  Mass.  143;  to  show  that,  by  contemporaneous 
Gurney  v.  Collins,  64  Mich.  458;  Se-  parol  agreement,  the  sale  was  con- 
grist  v.  Crabtree,  13117.  S.  287;  Claflin  ditional,  to  the  prejudice  of  a  bona 
v.  Furniture  Co.,  58  N.  J.  L.  379;  fide  purchaser,  attaching  creditor  or 
Rohn  v.  Dennis,  109  Pa.  St.  504.  trustee    in    insolvency.     Ryder    v. 

3  Smith  v.  Tilton,  10  Me.  350.  It  Cooley,  58  Conn.  367,  20  Atl.  R.  470. 
being  evident  that  part  of  the  con-  5Goss  Printing  Press  Co.  v.  Jordan, 
tract  rested  in  parol,  parol  evidence  171  Pa.  St.  474,  32  Atl.  R.  1031.  But 
is  properly  admissible,  although  the  the  intent  to  change  must  be  clear. 
order  and  acceptance  were  in  writ-  Caraway  v.  Wallace,  2  Ala.  542.  And 
ing.  Burditt  v.  Howe,  69  Vt.  563,  38  in  Vermont  a  change  of  possession 
Atl.  R  240.  was  held  necessary,  as  against  cred- 

4  Nor,  in  Vermont,  against  attach-  itors.     Wright  v.  Vaughn,  45  Vt.  369. 

467 


§§  566-568.]  law  of  sale.  [book  ii. 

§  566.  Fact  that  promise  to  pay  is  absolute  does  not 

make  sale  absolute.—  On  the  other  hand,  the  fact  that  the 
vendee's  promise  to  pay  is  absolute  does  not  necessarily  deprive 
the  contract  of  its  conditional  character  and  make  it  absolute.1 
In  a  doubtful  case  it  would  be  suggestive,  but  it  is  not  conclu- 
sive; and,  indeed,  as  will  be  seen,2  the  absolute  character  of  the 
vendee's  obligation  — at  least  where  the  vendor  elects  so  to 
treat  it  —  is  a  common  characteristic  of  these  contracts. 

§567,  Construction  of  such  contracts.— As  has  been  al- 
ready seen,  contracts  intended  to  fall  within  the  class  now 
under  consideration  have  been  made  in  every  variety  of  form, 
and  many  different  names  have  been  applied  to  them.  They 
have  often  been  purposely  given  the  form  or  name  of  some 
other  contract,  in  order  to  disguise  their  real  nature.  This  has 
led  to  much  difficulty  in  determining  what  is  the  true  con- 
struction to  be  given  them.  "  The  answer  to  this  question," 
said  the  supreme  court  of  the  United  States,3  "  is  not  to  be 
found  in  any  name  which  the  parties  may  have  given  to  the 
instrument,  and  not  alone  in  any  particular  provisions  it  con- 
tains, disconnected  from  all  others,  but  in  the  ruling  intention 
of  the  parties  gathered  from  all  the  language  they  have  used. 
It  is  the  legal  effect  of  the  whole  which  is  to  be  sought  for. 
The  form  of  the  instrument  is  of  little  account." 

§  568.  Declaration  of  parties  not  conclusive.— The 

mere  fact  that  the  parties  declare  that  their  agreement  shall 
not  amount  to  a  sale,  or  shall  not  be  construed  in  any  other 
manner,  is  not  conclusive.  They  cannot,  by  their  agreement, 
control  the  operation  of  the  rules  of  construction.4 

i  Perkins  v.  Mettler  (1899),  126  Cal.  ^Heryford  v.  Davis,  supra;  Greer 

100,   58  Pac.   R.   384;  Van   Allen   v.  v.  Church,  13  Bush  (Ky.),  430;  Dede- 

Francis  (1897),  123  Cal.  474,  5G  Pac.  R.  rick  v.  Wolfe,  68  Miss.  500,  9  S.  R.  350, 

339;  Harkness  v.  Russell,  118  U.  S.  24  Am.  St.  R  283;  Gerow  v.  Castello, 

663>  11  Colo.  560,  7  Am.  St.  R.  260,  19  Pac. 

2  See  post,  %  625.    But  see  §£  578,  579.  R.  505, 

3  In  Heryford  v.  Davis  (1880),  102 
U.  S.  235. 

4G8 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  569. 

§  569.  Instruments  in  form  of  lease  held  to  l)e  con- 
ditional contracts  to  sell. —  In  very  many  of  the  cases  the 
instrument  in  question  has  been  called  a  lease,  and  much  of 
the  language  used  has  been  such  as  would  be  appropriate  to  a 
lease.  It  is,  of  course,  entirely  competent  for  parties  to  make 
leases  of  chattels,  but  the  instrument  will  not  be  deemed  a 
lease  where  its  contents  and  evident  purpose  show  that  some 
other  construction  is  demanded.  Hence  the  cases  are  numer- 
ous in  which  instruments  called  leases  have  been  held  to  be 
conditional  contracts  to  sell,1  that  is,  agreements  to  sell  with 
payment  made  a  condition  precedent  to  the  passing  of  the 
title,  notwithstanding  that  the  parties  have  expressly  stipu- 
lated that  no  such  construction  should  be  put  upon  their  con- 
tract.2 


1  Hine  v.  Roberts,  48  Conn.  267,  40 
Am.  R 170;  Loomis  v.  Bragg.  50  Conn. 
228,  47  Am.  R  638;  Singer  Mfg.  Co.  v. 
Cole,  4  Lea  (Tenn.),  439,  40  Am.  R.  20; 
Cowan  v.  Singer  Mfg.  Co.,  92  Tenn. 
376,  21  S.  W.  R  663;  Singer  Mfg.  Co. 
v.  Graham,  8  Oreg.  17, 34  Am.  R  572; 
Gerow  v.  Castello,  11  Colo.  560,  19 
Pac.  R  505,  7  Am.  St.  R  260;  Hays 
v.  Jordan,  85  Ga,  741,  11  S.  E.  R  833, 
9  L.  R  A.  373;  Cottrell  v.  Bank,  89 
Ga.  508,  15  S.  E.  R  944;  Ross  v.  Mo- 
Duffie,  91  Ga.  120,  16  S.  E.  R  648; 
Miller  v.  Steen,  30  Cal.  402,  89  Am. 
Dec.  124;  Lucas  v.  Campbell,  88  111. 
447;  Gerrish  v.  Clark,  64  N.  H.  492, 
13  Atl.  R  870;  Hill  v.  Townsend,  69 
Ala.  286;  Sumner  v.  Woods,  67  Ala. 
139;  Hegler  v.  Eddy,  53  Cal.  597; 
Parke,  etc.  Co.  v.  Lumber  Co.,  101 
Cal.  37,  35  Pac.  R  442;  Lundy  Fur- 
niture Co.  v.  White,  128  Cal.  170,  60 
Pac.  R.  759;  Kohler  v.  Hayes,  41  Cal. 
455;  Watertown  S.  C.  Co.  v.  Davis, 
5  Del.  192;  Forrest  v.  Hamilton,  98 
Ind.  91:  Budlong  v.  Cottrell,  64  Iowa, 
234;  Fleck  v.  Warner,  25  Kan.  492; 
Chase  v.  Ingalls,  122  Mass.  381;  Cole 


v.  Berry,  42  N.  J.  L.  308;  Sage  v. 
Sleutz,  23  Ohio  St.  1;  Carpenter  v. 
Scott,  13  R.  I.  477;  Matthews  v.  Lucia, 
55  Vt.  308;  Fosdick  v.  Schall,  99  U.  S. 
235;  Whelan  v.  Couch,  26  Grant  Ch.74; 
De  St.  Germain  v.  Wind,  3  Wash.  Ter. 
189;  Quinn  v.  Parke,  etc.  Co.,  5  Wash. 
276,  31  Pac.  R  866;  Whitcomb  v. 
Wood  worth,  54  Vt,  544;  Collender 
Co.  v.  Marshall,  57  Vt.  232;  Gorham 
v.  Holden,  79  Me.  317,  9  Atl.  R  894; 
Gross  v.  Jordan,  83  Me.  380,  22  Atl. 
R  250;  Campbell  v.  Atherton,  92  Me. 
66,  42  Atl.  R  232;  Ham  v.  Cerniglia, 
73  Miss.  290,  18  S.  R.  577;  Puffer  v. 
Lucas,  112  N.  C.  377,  17  S.  E.  R.  174; 
Clark  v.  Hill,  117  N.  C.  11,  23  S.  E.  R 
91,  53  Am.  St.  R.  574;  Singer  Mfg. 
Co.  v.  Gray,  121  N.  C.  168,  28  S.  E.  R. 
257;  Wilcox  v.  Cherry,  123  N.  C.  79, 
31  S.  E.  R  369;  Wickes  v.  Hill,  115 
Mich.  333,  73  N.  W.  R  375;  Farquhar 
v.  McAlevy,  142  Pa.  St.  233.  21  Atl. 
R.  811;  Sanders  v.  Wilson,  19  D.  C.  (8 
Mackey),  555. 

2  See  Gerow  v.  Castello,  11  Colo.  560, 
7  Am.  St.  R.  260;  Gross  v.  Jordan,  83 
Me.  380, 22  Atl.  R  250;  Hays  v.  Jordan, 


469 


§§  570,  571.]  LAW    OF    SALE.  [ROOK    II. 

§  570.  .  This  result  has  been  almost  uniformly  reached 

in  those  cases,  now  so  common,  in  which,  by  the  terms  of  the 
contract,  one  party  purports  to  lease  or  rent  to  another  per- 
sonal property  delivered  into  his  possession  upon  his  agreeing 
to  pay  stipulated  sums  as  rent,  upon  the  payment  of  which  he  is 
to  become  the  owner  of  the  property ;  but  further  stipulating 
that  if  such  sums  are  not  paid  the  other  party  may  terminate 
the  lease  and  retake  the  property.  Usually  the  instalments 
of  "  rent "  to  be  paid  in  these  cases  are  out  of  any  proportion 
to  the  fair  rental  value  of  the  property  for  the  periods  fixed ; 
the  aggregate  of  the  instalments  is  always  the  agreed  value  of 
the  property,  and  when  the  total  rent  is  paid  the  lessee  be- 
comes the  owner.  To  call  such  contracts  leases  is,  it  is  said,  a 
mere  subterfuge  which  cannot  deceive  the  court  as  to  their 
true  character  and  purpose. l 

§  571.  -.  In  a  few  cases,  however,  not  easily  distinguish- 
able from  those  last  referred  to,  the  courts  have  held  that  the 
instrument  involved  was  really  a  lease  with  an  option  in  the 
lessee  to  become  the  owner.2 

85  Ga.  741.  9  L.  R.  A.  373;  Hervey  v.  be  given  when  the  full  amount  is 
Locomotive  Works,  93  U.  S.  664;  paid;  and  the  sale  of  the  piano,  and 
Heryford  v.  Davis,  102  U.  S.  235;  not  the  renting  thereof,  is  evidently 
Dederick  v.  Wolfe.  68  Miss.  500.  24  the  real  end  and  basis  of  the  con- 
Am.  St.  R.  283;  Cowan  v.  Singer  Mfg.  tract." 

Co.,  92  Tenn.  376,  21  S.  W.  R.  663.  2  Thus  in  Southern  Music  House  v. 
*In  Hays  v.  Jordan,  supra,  the  Dusenbury,  27  S.  C.  464,  4  S.  E.  R. 
court  say:  "Although  the  contract  60,  an  agreement  in  form  of  a  lease 
does  use  the  term  'rent,'  and  states  for  an  organ,  worth  §95,  for  the  use 
that  the  notes  are  given  for  the  '  use '  of  which  the  lessee  was  to  pay  $10 
of  the  piano,  we  do  not  so  construe  per  month,  and  which  gave  him  the 
it,  but  regard  it,  not  as  a  lease  or  right,  at  any  time  during  the  rental 
renting,  but  as  a  conditional  sale  period,  to  "purchase  said  instrument 
with  title  reserved  in  the  vendor  by  paying  the  above  valuation  there- 
until the  purchase  price  is  paid.  for.  and  then,  and  in  that  case  only, 
Guilford  v.  McKinley,  61  Ga.  232.  all  amounts  theretofore  paid  as  rental 
The  entire  $350  styled  '  rent '  is  made  or  advance  deposit  shall  be  deducted 
payable  within  six  months  from  the  from  price  of  instrument,"  was  held 
date  of  the  transaction,  and  is  the  to  be  a  lease  with  an  option  to  pur- 
stipulated  value  of  the  piano,  and  chase.  Talmadge  v.  Oliver,  14  S.  C. 
the  consideration  for  a  bill  of  sale  to  522;  Straub  v.  Screven,  19  S.  C.  445, 

470 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC    CHATTELS.       [§§572,573. 

§  572.  Instruments  in  form  of  lease  construed  to  be 

sales  upon  condition  subsequent. —  But  in  other  cases  of  in- 
struments denominated  leases  courts  have  held  them  to  amount 
to  true  conditional  sales,  i.  e.,  present  sales  subject  to  be  de- 
feated upon  a  condition  subsequent,  namely,  upon  non-pay- 
ment. Thus,  in  a  leading  case,1  upon  this  view  of  the  contract, 
a  piano  had  been  delivered  under  an  agreement  called  a  lease, 
the  party  taking  it  paying  $50  on  delivery  as  rent  for  the  first 
month  and  agreeing  to  pay  $50  a  month  rent  for  thirteen 
months  thereafter.  If  within  thirteen  months  he  should  pay 
$700  the  piano  should  become  his  property,  in  which  case  all 
sums  paid  as  rent  were  to  apply  as  part  of  the  $700  purchase 
price.  "  It  was  a  mere  subterfuge,"  said  the  court,  "  to  call 
this  transaction  a  lease;  and  the  application  of  that  term  in 
the  written  agreement  between  the  parties  does  not  change  its 
real  character.  It  was  a  conditional  sale,  with  a  right  of  re- 
scission on  the  part  of  the  vendor  in  case  the  purchaser  should 
fail  in  payment  of  his  instalments." 

§  573.  .  This  view  of  these  agreements,  differing  radi- 
cally, as  will  be  seen,  from  that  of  the  previous  sections,  has 
not  been  generally  followed  in  other  States,2  though  it  has  been 
followed  in  Colorado.3    The  same  rule  also  prevails  in  Massa- 

and  Herring  v.  Cannon,  21  S.  C.  212,  but  "one  piano,  equal  in  value  to  the 

were  distinguished.     The  same  form  above-named  piano,"  was  held,  two 

of  instrument  received  the  same  con-  judges  dissenting,  not  to  be  a  condi- 

struction  in  the  later  case  of  South-  tional  sale. 

em  Music  House  v.  Hornsby,  45  S.  C.  *  Murch  v.  Wright,  4G  I1L  487,  95 

111,  22 S.  E.  R.  781,  although  the  court  Am.   Dec.   455.     See    also  Lucas  v. 

below  had  characterized  it  as  "ex-  Campbell,  88  111.  447. 

treme  doctrine."    In  Singer  Mfg.  Co.  2See  criticisms  upon  this  case  in 

v.  Smith,  40  S.  C.  529,  19  S.  E.  R.  132,  Sanders  v.  Heber,  28  Ohio  St.  636, 

an  instrument  similar  in  all  respects  where  it  is  said  to  stand  almost  alone 

except  that  it  reserved  no  option  to  and  to  be  contrary  to  the  weight  of 

purchase  was  construed  as  a  sale  authority. 

with  lien  reserved.  In  Guest  v.  Diack,  3  Gerow  v.  Castello,  11  Colo.  560,  19 

29  Nova  Scotia,  504,  a  contract  sub-  Pac.  R.  505,  7  Am.  St.  R.  260.     But 

stantially  like  that  of  the  Southern  see    Andrews    v.   Colorado   Savings 

Music  House,  supra,  except  that  upon  Bank,  20  Colo.  313,  36  Pac.  R  902,  36 

a  payment  the  seller  agreed  to  de-  Am.  St.  R.  291. 

liver,  not  necessarily  the  same  piano, 

471 


§§  574,  575.J  law  of  sale.  [book  ii. 

chusetts,  where  such  contracts  are  regarded  as  conditional 
sales,  "  liable  to  be  defeated  by  non-performance  of  the  condi- 
tion," but  "  which  could  be  ripened  into  an  absolute  title  by 
the  performance  of  the  conditions."  1 

g  574.  Instruments  in  form  of  leases  held  to  be  .abso- 
lute sales  reserving  a  lien  or  constituting  chattel  mortgages. 

But  in  yet  other  cases  of  instruments  denominated  leases,  courts 
have  reached  still  different  conclusions  as  to  their  effect,  based 
upon  language  thought  to  disclose  a  different  intention.  Thus, 
in  a  leading  case2  in  the  supreme  court  of  the  United  States, 
the  agreement  was  held  to  be  neither  a  lease  nor  a  conditional 
sale,  but  a  mortgage.  In  that  case  it  appeared  that  a  number 
of  cars  had  been  delivered  to  a  railroad  company  under  a  con- 
tract which  "  industriously  and  repeatedly  "  spoke  of  the  ar- 
rangement as  a  loan  for  hire.  Still,  notes  had  been  given  for 
the  amount  of  the  rent,  secured  by  collateral,  and  they  fell  due 
before  the  term  of  the  lease  expired,  and  were  clearly  intended 
to  be  collected  at  maturity.  If  they  were  duly  paid,  the  cars 
were  to  become  the  property  of  the  railroad  company;  if  they 
were  not  paid,  the  cars  might  be  sold  for  the  payment  of  the 
notes,  and  any  surplus  was  to  be  returned  to  the  railroad  com- 
pany. 

§  575.  .  "  In  view  of  these  provisions,"  said  the  court, 

"  we  can  come  to  no  other  conclusion  than  that  it  was  the  in- 
tention of  the  parties,  manifested  by  the  agreement,  that  the 
ownership  of  the  cars  should  pass  at  once  to  the  railroad  com- 
pany, in  consideration  of  their  becoming  debtors  for  the  price. 
Notwithstanding  the  efforts  to  cover  up  the  real  nature  of  the 
contract,  its  substance  was  an  hypothecation  of  the  cars  to 
secure  a  debt  due  to  the  vendors  for  the  price  of  a  sale.  The 
railroad  company  was  not  accorded  an  option  to  buy  or  not. 
They  were  bound  to  pay  the  price,  either  by  paying  their  notes 

1  Day  v.  Bassett,  102  Mass.  445;  Cur-        2  Heryford  v.  Davis  (1880),  102  U.  S. 
rier  v.  Knapp,  117  Mass.  324;  New-    235. 
hall  v.  Kingsbury,  131  Mass.  445;  Vin- 
cent v.  Cornell,  13  Pick.  294. 

472 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§  576,  577. 


or  surrendering  the  property  to  be  sold  in  order  to  make  pay- 
ment. This  was  in  no  sense  a  conditional  sale.  This  giving 
the  property  as  a  security  for  the  pa}7ment  of  a  debt  is  the  ve^ 
essence  of  a  mortgage,  which  has  no  existence  in  a  case  of  con- 
ditional sale." 


§576. 


The  same  result  has  also  been  reached  in  other 


cases  less  readily  distinguishable  from  those  in  the  preceding 
sections  than  the  one  just  referred  to.1 

§  577.  Instruments  in  form  of  couditional  sale  held 

to  be  absolute  sales  reserving  a  lien  or  mortgages. —  Cases, 

further,  are  not  infrequent  in  which  instruments  denominated, 
or  in  the  form  of,  conditional  sales  have  been  held  to  consti- 
tute executed  and  absolute  sales  with  a  lien  reserved.  In  a 
somewhat  clear  case2  before  the  supreme  court  of  the  United 


1  The  same  result,  i.  e.,  that  the 
agreement  was  a  sale  with  a  lien 
reserved,  was  reached  in  Greer  v. 
Church  (1877),  13  Bush  (Ky.),  430, 
where  the  court  says:  "In  this  case 
the  transaction  shows  a  sale,  and 
that  being  shown,  it  does  not  matter 
whether  the  parties  intended  the 
title  to  pass  or  not;  the  sale  being 
completed  by  an  agreement  as  to  the 
price  and  terms  of  payment  and  de- 
livery of  possession  to  the  vendee, 
the  law,  in  furtherance  of  public 
policy  and  to  prevent  fraud,  will 
treat  the  title  as  being  where  the 
nature  of  the  transaction  required  it 
should  be;"  and  that  "at  best  the 
effect  was  to  give  the  appellees  a 
lien  "  as  against  the  purchaser;  and 
in  Knittel  v.  Cushing,  57  Tex.  354,  44 
Am.  R.  598,  where  Greer  v.  Church 
was  approved,  and  where  the  court 
say  of  the  so-called  lease:  "  If  a  valid 
instrument  #at  all,  it  must  be  held  to 
be  a  sale,  and  that  the  pretended 
renting  was  but  a  device  to  secure 
the  remainder  of  the  purchase-money 
due;  "  and  in  Palmer  v.  Howard,  72 

473 


Cal.  293,  1  Am.  St.  R.  60,  where  the 
court  follows  Heryford  v.  Davis,  upon 
the  ground  that,  in  the  case  at  bar, 
"  the  intention  must  be  taken  to  have 
been  to  transfer  the  ownership  of 
the  property,  reserving  a  security  for 
the  price,  and  nothing  more." 

^Beardsley  v.  Beardsley  (1890),  138 
U.  S.  262. 

In  Arkansas  Cattle.  Co.  v.  Mann 
(1888),  130  U.  S.  69,  the  court,  in  con- 
struing a  contract  relating  to  the 
sale  of  cattle,  said:  "That  instru- 
ment recites  that  the  owners  had,  on 
the  day  of  its  execution,  'sold' the 
cattle,  and  that  recital  is  followed 
by  clause  guaranteeing  the  title  and 
providing  the  mode  in  which  the 
buyer  was  to  make  payment.  Here 
are  all  the  elements  of  an  actual  sale, 
as  distinguished  from  an  executory 
agreement.  The  retention  of  posses- 
sion by  the  sellers  until,  ami  as  secu- 
rity for,  the  payment  of  the  price, 
was  not  inconsistent  with  an  actual 
sale  by  which  title  passed  to  the 
buver." 


§  577.]  LAW    OF   SALE.  [BOOK    II. 

States,  the  contract  read:  "  I  hold  of  the  stock  of  the  "Washing- 
ton and  Hope  Railway  Company  .  .  .  thirteen  hundred  and 
fifty  shares,  which  is  sold  to  P.  F.  B.,  and  which,  though  stand- 
ing in  my  name,  belongs  to  him,  subject  to  a  payment  of  eight 
thousand  dollars,"  etc.  Said  the  court:  "  By  the  appellant  it  is 
claimed  that  this  is  a  mere  executory  contract,  an  agreement 
to  sell;  by  the  appellee,  that  it  is  an  executed  contract,  a  sale 
with  a  reservation  of  security.  The  distinction  is  obvious,  and 
the  significance  important.  If  an  agreement  to  sell,  the  mov- 
ing party  must  be  the  purchaser.  If  a  sale,  an  executed  con- 
tract with  reservation  of  security,  the  moving  party  is  the 
vendor,  the  one  retaining  security.  If  an  agreement  to  sell, 
the  moving  party,  the  purchaser,  must  within  a  reasonable 
time  tender  performance  or  make  excuse  therefor.  If  an  exe- 
cuted contract,  a  completed  sale,  then  the  moving  party  is  the 
vendor,  the  security  holder,  and  he  assumes  all  the  burdens 
and  risks  of  delay.  What,  therefore,  is  the  significance  and 
import  of  this  instrument?  This,  as  claimed  by  the  appellant, 
is  not  to  be  determined  by  any  separate  clause,  but  by  the  in- 
strument as  a  whole.  .  .  .  Tested  by  this  rule,  this  instru- 
ment must  be  adjudged  not  a  contract  to  sell,  but  a  sale  with 
reservation  of  security.  Note  the  language  of  the  instrument: 
'which  is  sold.'  Again,  '  which,  though  standing  in  my  name, 
belongs  to  him.'  These  words  imply  nothing  executory,  but 
something  executed.  It  is  not  that  the  vendor  will  sell,  but  has 
sold.  Not  that  the  title  remains  in  the  vendor,  yet  to  be  trans- 
ferred, but  that  it  already  has  been  transferred.  The  owner- 
ship, equitable  if  not  legal,  is  in  the  vendee.  It  is  not  that  the 
stock  belongs  to  the  vendee,  upon  payment,  as  appeared  in  the 
case  of  French  v.  Hay}  but  that  it  is  now  his,  subject  to  a  lien. 
Its  meaning  is,  therefore,  that  of  a  sale,  with  retention  of  the 
legal  title  as  security  for  purchase-money.  It  is  an  equitable 
mortgage,  and  the  rights  created  and  assumed  by  it  are  like 
those  created  and  assumed  when  the  owner  of  real  estate  con- 
veys by  deed  to  a  purchaser,  and  takes  back  a  mortgage  as  se- 
curity for  the  unpaid  purchase-money." 

122  Wall.  (89  U.  S.)  231. 
474 


CH.  III.]  CONDITIONAL    SALE   OF    SPECIFIC    CHATTELS.  [§  578. 

g  578,  .  In  a  somewhat  different  case  in  Colorado,1  it 

appeared  that  Andrews  &  Co.  had  bargained  to  one  Smith  a 
quantity  of  opera  chairs  which  were  put  into  the  latter's  opera 
house.  After  the  making  of  the  contract,  but  before  the  chairs 
had  been  delivered,  Smith  had  mortgaged  the  opera  house  and 
contents  to  the  Colorado  Savings  Bank,  and  in  an  action  by 
the  bank  to  foreclose  its  mortgage  Andrews  &  Co.  intervened, 
claiming  to  be  the  owners  of  the  chairs.  The  contract  between 
Andrews  &  Co.  and  Smith  provided  for  payment  of  one-fourth 
of  the  price  in  cash  and  of  the  residue  by  his  notes;  and  it  ex- 
pressly stipulated  that  the  title  should  be  and  remain  in  An- 
drews &  Co.  until  the  whole  was  paid.  This  contract  was  duly 
filed,  but  was  not  executed  or  acknowledged  as  required  for 
chattel  mortgages.  The  decisive  question,  said  the  court,  was 
"  whether  the  arrangement  under  and  in  pursuance  of  which 
the  seating  was  furnished  constitutes  a  conditional  sale,  or  an 
absolute  sale  and  transfer  of  ownership,  with  a  reservation  of 
a  lien  to  secure  the  payment  of  the  purchase  price.  If  the  lat- 
ter, it  must  be  conceded  that  it  is  in  effect  a  chattel  mortgage, 
and  void  as  to  third  parties,  because  not  executed  and  acknowl- 
edged in  conformity  with  the  chattel-mortgage  act.  In  deter- 
mining this  question  the  entire  transaction  between  intervenors 
and  Smith  must  be  considered,  and  its  legal  effect  ascertained, 
not  alone  by  any  particular  provisions  of  the  written  contract 
itself,  but  from  all  the  stipulations  and  agreements  contained 
therein,  as  well  as  in  the  notes  given  in  connection  therewith. 
When  so  considered  it  is  evident,  notwithstanding  the  agree- 
ment itself  provides  that  the  title  to  the  seating  shall  remain 
in  Andrews  &  Co.  until  full  payment  in  cash  shall  have  been 
made  therefor,  thus  evidencing  an  intent  to  make  the  sale  con- 
ditional so  far  as  the  transfer  of  the  title  is  concerned,  that 
such  an  intention  is  rebutted  by  the  terms  and  stipulations  in 
the  notes  given  in  pursuance  of  the  agreement,  they  being  ab- 
solute obligations,  making  the  purchaser  unconditionally  liable 

i  Andrews  v.  Colorado  Savings  in  substance  is  Palmer  v.  Howard 
Bank  (1894),  20  Colo.  313,  36  Pac.  R.  (1887),  72  CaL  293,  13  Pac.  R.  858,  1 
902,  36  Am.  St,  R.  291.     Very  similar    Am.  St.  R.  60. 

475 


5780 


LAW    OF    SALE. 


[BOOK    II. 


for  the  purchase  price.  The  optional  payment  of  the  purchase 
price  is  as  essential  to  constitute  a  transaction  a  conditional 
sale  as  the  conditional  passing  of  the  title;  and  a  transaction 
that  in  express  terms  imposes  an  unconditional  liability  upon 
the  vendee  to  pay  the  purchase  price  for  the  property  deliv- 
ered, however  characterized  by  the  parties,  is  essentially  and 
in  legal  effect  an  absolute,  and  not  a  conditional,  sale.  '  If,  by 
the  terms  of  the  agreement,  the  purchaser  became  liable  un- 
conditionally for  the  purchase  price,  although  by  the  agree- 
ment he  may  never  get  the  title  and  ownership  of  the  property, 
then  the  agreement  is  an  evasion  of  the  registration  statute, 
as  its  purpose  is  simply  to  retain  a  secret  lien.'1     ...     In 


1  Citing  Hart  v.  Barney,  etc.  Mfg. 
Co.,  7  Fed.  R.  543. 

In  Aultman  v.  Silha  (1893),  85  Wis. 
359,  55  N.  W.  R.  711,  it  appeared  that 
Silha  had  ordered  from  Aultman  & 
Co.  a  threshing  outfit  for  which  he 
was  to  give  his  notes  secured  by  a 
mortgage  upon  the  machineiy  and 
also  upon  certain  land;  and  the  ques- 
tion arose  whether  there  was  a  con- 
ditional sale  or  a  sale  absolute  with 
a  mortgage  back  for  security.  Said 
the  court:  "Where  this  question  is 
at  all  doubtful  the  courts  are  in- 
clined to  hold  the  transaction  a  mort- 
gage.  The  real  nature  of  the  trans- 
actions, as  disclosed  by  the  written 
documents  and  all  the  surrounding 
circumstances,  is  sought  to  be  ascer- 
tained. Rockwell  v.  Humphrey,  57 
Wis.  410.  The  courts  do  not  favor  a 
conditional  sale.  In  viewing  this 
transaction, and  ascertaining  its  legal 
effect,  all  the  contemporaneous  doc- 
uments executed  between  the  parties 
are  to  be  considered.  There  is,  first, 
the  order,  which  plainly  contem- 
plates an  absolute  sale  and  expressly 
provides  for  the  execution  of  a  first 
mortgage  on  the  machinery;  second, 
the  notes,  which  contain  a  provision 


that  the  title  of  the  machinery  shall 
not  pass  until  the  notes  are  paid  in 
full,  but  which  also  contain  a  clause 
authorizing  sale  of  the  property  and 
application  of  the  proceeds  on  the 
notes,  which  clause  is  inappropriate 
to  anything  but  a  mortgage;  third, 
the  chattel  mortgage,  which  ex- 
pressly recognizes  and  asserts  and 
warrants  that  the  title  of  the  ma- 
chinery is  in  Silha,  and  contains 
elaborate  and  full  provisions  for  fore- 
closure and  sale  in  case  of  default, 
and  covenants  that,  in  case  the  pro- 
ceeds of  the  sale  are  insufficient  to 
pay  the  debt,  Silha  will  pay  the  de- 
ficiency; fourth,  the  real-estate  mort- 
gage. Consideration  of  all  of  these 
documents  forces  our  minds  to  the 
conclusion  that  the  transaction  is  an 
absolute  sale  with  mortgage  back. 
The  stipulations  and  agreements 
whicli  indicate  this  intent  are  nu- 
merous, while  there  is  only  one  which 
points  to  a  conditional  sale,  and  that 
is  coupled  with  a  provision  only  suit- 
able to  a  chattel  mortgage.  The  acts 
and  conduct  of  the  parties  also  point 
to  the  same  conclusion.  The  giving 
of  mortgages  upon  the  machinery 
and  other  property  to  secure  the  pay- 


476 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  578. 


terms  the  notes  executed  by  Smith  to  the  interveners  made 
him  an  absolute  debtor  for  the  price  of  the  furniture,  and  the 
stipulation  therein  that  'A.  H.  Andrews  &  Co.,  or  their  as- 
signs, shall  have  the  right  to  assume  possession  at  any  time 
they  may  deem  themselves  insecure,  and,  after  maturity,  to 
sell  said  property  and  apply  the  proceeds  of  such  sale,  over 
and  above  the  expenses  of  taking  and  retaining  possession 
thereof,  on  this  note,  and  to  collect  the  balance,'  being  mani- 
festly for  the  purpose  of  enabling  the  intervenors  to  enforce 
such  payment  by  subjecting  the  property  to  sale  for  that  pur- 
pose, is  "an  attempt  to  reserve  a  lien  thereon  to  secure  the  pay- 
ment of  the  purchase  price."  It  was  therefore  held  void  as  to 
third  parties,  "  as  being  in  contravention  of  our  chattel-mort- 
gage act." 


ment  of  the  notes,  with  stipulations 
to  pay  the  balance  remaining  after 
foreclosure,  is  utterly  inconsistent 
with  the  idea  of  a  conditional  sale. 
Silver  Bow  M.  &  M.  Co.  v.  Lowry,  6 
Mont.  288." 

In  Baldwin  v.  Crow  (1888),  86  Ky. 
679,  7  S.  W.  R  146,  it  appeared  that 
Baldwin  &  Co.  had  delivered  to  one 
Dennis  a  piano,  and  received  from 
him  three  notes,  each  of  which  con- 
tained the   following  clause:  "This 
note  is  of  a  series  given  for  the  pur- 
chase of  the  instrument  mentioned 
below,  the  conditions  of  which  pur- 
chase are,  that  said  instrument  re- 
mains the  property  of  D.  H.  Baldwin 
&  Co.  until  all  notes  given  for  the 
instrument  are  paid,  and  in  default 
of  payment  of  any  of  said  notes  at 
maturity,  or  at  any  time  after  such 
default,  before  accepting  payment  of 
amount  thus  due,  or  in  case  said  in- 
strument, before  payment  in  full,  is 
removed    from    Nicholasville,   Ken- 
tucky, without  written  consent  of 
D.  H.  Baldwin  &  Co.,  they  may  re- 
ceive possession  of  said  instrument 

4 


without  any  liability  on  their  part 
to  refund  any  money  previously 
paid  on  account  of  said  purchase. 
Loss  in  case  of  fire  to  be  borne  by 
me,  A.  J.  Dennis."  Held  to  be  an  ab- 
solute sale  and  mortgage  back,  rely- 
ing on  Greer  v.  Church,  13  Bush  (Ky.), 
430  (cited  in  preceding  section),  and 
Barney  &  Smith  Mfg.  Co.  v.  Hart,  8 
Ky.  Law  R  223,  1  S.  W.  R.  414.  Sub- 
stantially similar  also  is  Singer  Mfg. 
Co.  v.  Smith,  40  S.  C.  529,  19  S.  E.  R. 
132. 

In  Damm  v.  Mason,  98  Mich.  237, 
57  N.  W.  R.  123,  it  appeared  that  one 
Partrick  was  indebted  to  Mason,  and, 
being  desirous  of  securing  him,  gave 
to  Mason  a  contract  describing  prop- 
erty already  owned  by  Partrick,  and 
in  his  possession,  but  declaring,  as  in 
a  contract  of  conditional  sale,  that 
the  title  should  remain  in  Mason 
until  paid  for.  Damm  was  a  subse- 
quent mortgagee  for  Partrick.  In  a 
contest  between  Damm  and  Mason  it 
was  held  that  the  contract  given  to 
Mason  was  merely  a  security.  See 
a' so  Findley  v.  Deal,  69  Ga.  359. 
77 


§§  57^-581.]  LAW    OF    SALE.  [BOOX    II. 

§  579.  .  It  is  believed,  however,  that  the  doctrines  here 

laid  down  are  not  in  harmony  with  those  generally  prevailing 
elsewhere.1 

§  580.  The  rule  in  Pennsylvania. —  The  rule  in  Penn- 
sylvania has  been  thought  to  be  somewhat  peculiar,  and  re- 
quires mention.  Distinction  is  there  made  between  a  bailment 
with  a  power  of  purchase  annexed,  and  a  conditional  sale.  If 
goods  are  delivered  to  be  used  and  returned,  this  is  a  bailment, 
and  it  continues  such  in  Pennsylvania  notwithstanding  that 
there  may  be  annexed  to  it  a  stipulation  that  if  the  bailee  shall 
pay  a  designated  price  he  shall  become  the  owner,  and  other- 
wise shall  pay  for  the  use.2  If,  however,  notwithstanding  the 
form  or  the  name  of  the  agreement,  it  is  not  contemplated  that 
the  article  shall  be  returned  to  the  bailor,  but  that  the  bailee 
has  bought  it  or  is  bound  to  buy  it,  though  the  title  may  be  re- 
served by  way  of  security,  it  is  a  conditional  sale.3 

§  581.  ■ .  Of  a  contract  of  the  first  kind  it  was  said: 

"  Properly  speaking  there  was  not  a  sale,  but  a  contract  to  sell 
at  a  future  clay,  and  the  delivery  in  the  meantime  was  a  loan 
subject  to  be  turned  into  a  sale  by  a  compliance  with  certain 
conditions."4  In  a  case  of  the  latter  kind:  "It  is  true  it  was 
claimed  to  be  a  lease  and  the  transaction  a  bailment,  but  it  was 

1  See  post  §  583.  53,37  Am.  R.  661;  Farquhar  v.  Mc- 

2  Clark  v.Jack,  7  Watts,  375;  Myers  Alevy,  142  Pa.  St.  233;  Clow  v. 
t.  Harvey,  2  Pen.  &  W.  478,  23  Am.  Woods,  5  S.  &  R.  275,  9  Am.  Dec.  346; 
Dec.  60;  Rowe  v.  Sharp,  51  Pa.  St,  26;  Babb  v.  Clemson,  10  S.  &  R.  419,  13 
Chamberlain  v.  Smith,  44  Pa.  St.  431;  Am.  Dec.  684;  Martin  v.  Mathiot,  14 
Henry  v.  Patterson,  57  Pa.  St.  346;  S.  &  R.  214,  16  Am.  Dec.  491;  Jenkins 
Becker  v.  Smith,,  59  Pa.  St.  469;  En-  v.  Eichelberger,  4  Watts,  121,28  Am. 
low  v.  Klein,  79  Pa.  St.  488;  Crist  v.  Dec.  691;  Rose  v.  Story,  1  Pa.  St.  190, 
Kleber,  79.  Pa.  St.  290;  Christie's  Ap-  44  Am.  Dec.  121;  Waldron  v.  Hanpt, 
peal,  85  Pa.  St.  463;  Edwards'  Appeal,  2  P.  F.  Smith,  408;  Haak  v.  Linder- 
105  Pa.  St.  103;  Dando  v.  Foulds,  105  mann,  64  Pa.  St.  499.  3  Am.  R.  612; 
Pa.  St.  74;  Brown  v.  Billington,  163  Dearborn  v.  Raysor,  132  Pa.  St.  231, 
Pa.  St.  76,  29  Atl.  R.  904;  Ditman  v.  20  Atl.  R.  690;  Ott  v.  Sweatman,  166 
Cottrell,  125  Pa.  St.  606, 17  Atl.  R.  504;  Pa.  St.  217,  31  Atl.  R.  102;  Peek  v. 
Case  v.  L'Oeble,  84  Fed.  R.  582.  Heim,  127  Pa.  St.  500, 17  Atl.  R.  984. 

3  Stadtfeld  v.  Huntsman,  92  Pa.  St.        4  Clark  v.  Jack,  supra. 

478 


CH.  III.]       CONDITIONAL    SALE  OF  SPECIFIC  CHATTELS.       [§§  582,  583. 

.  not  even  so  in  form.  It  lacked  the  essential  feature  of  a  bail- 
ment, viz. :  a  stipulation  for  a  return  of  the  property  at  the  end 
of  the  term.  .  .  .  It  is  of  the  essence  of  a  contract  of  bail- 
ment that  the  article  shall  be  returned  in  its  own  or  some  al- 
tered form  to  the  bailor,  so  that  he  may  have  his  own  again. 
.    .     .     The  agreement  was  clearly  a  conditional  sale."  1 

§  582.  Bailment  and  conditional  sale  distinguished. 

There  is,  however,  nothing  peculiar  in  principle  in  this  partic- 
ular phase  of  the  Pennsylvania  cases.  It  is  undoubted  that 
there  may  be  a  mere  bailment  with  a  privilege  of  purchase 
annexed,  and  it  would  be  so  held  in  any  State;2  but  a  bail- 
ment coupled  with  an  agreement  to  sell  and  purchase  is  held 
in  Pennsylvania,  as  in  other  States,  to  be  a  conditional  sale. 
Few  of  the  States,  however,  go  so  far  as  Pennsylvania  in  de- 
termining the  results  of  such  contracts,  in  which  respect,  as 
will  be  seen,3  the  Pennsylvania  doctrine  is  peculiar. 

§  583.  Conditional  sale  and  chattel  mortgage  distin- 
guished.—  Although  some  of  the  anomalous  contracts  which 
this  kind  of  dealing  has  produced  have  been  held  to  be  chat- 
tel mortgages  in  effect,4  there  is  a  clear  distinction  to  be  drawn 
between  either  the  conditional  contract  to  sell  or  the  condi- 
tional sale  and  the  chattel  mortgage,  and  this  distinction  lias 
usually  been  recognized  by  the  courts.5  As  is  said  in  one  case,6 

iFarquhar  v.  McAlevy,  supra.  See  133,  48  N.  W.  R.  1100;    Wadleigh  v. 

also  Morgan-Gardner  Electric  Co.  v.  Buckingham,  80  Wis.  230,  49  N.  W. 

Brown,  193  Pa.  St.  351,  44  Atl.  R.  459.  R.  745;  Nichols  v.  Ashton,  155  M;iss. 

2  See,  for  example,  McCall  v.  Pow-  205,  29  N.  E.  R.  519;  Harkness  v.  Rus- 

ell,  64  Ala.  254.  sell,  118  U.  S.  663;  Gilbert  v.  National 

*  See  post,  §  600,  note.  Cash  Reg.  Co.,  176  111.  288,  52  N.  E. 

4  See  ante,  §  577 ;  Hery ford  v.  Davis,  R.  22  [citing  also  Plummer  v.  Shir- 
102  U.  S.  235;  Greer  v.  Church,  13  ley,  16  Ind.  380;  Sumner  v.  Woods, 
Bush  (Ky.),  430;  Knittel  v.  Cushing,  52  Ala.  94;  Bingham  v.  Vandergrift, 
57  Tex.  354,  44  Am.  R.  598;  Camp-  93  Ala.  283;  Jowers  v.  Blandy,  58  Ga. 
bell  v.  Roddy,  44  N.  J.  Eq.  244, 14  Atl.  379;  McComb  v.  Donald,  82  Va.  903; 
R.  279,  6  Am.  St.  R.  889.  McGinnis  v.  Savage,  29  W.  Va.  362; 

5  Kimball  Co.  v.  Mellon,    80  Wis.  Yasser  v.  Buxton,  86  N.  C.335;  Frick 

e Kimball  Co.  v.  Mellon,  80  Wis.  133,  48  N.  W.  R.  1110. 

479 


§  583.] 


LAW  OF  SALE. 


[BOOK  II. 


"  it  is  very  difficult  to  see  how  a  contract  for  the  sale  of  per- 
sonal property,  in  which  it  is  agreed  that  the  title  of  the  prop- 
erty shall  remain  in  the  vendor,  and  the  possession  in  the 
vendee,  until  payment  of  the  debt,  can  be  called  a  mortgage 


v.  Hilliard,  95  N.  C.  117;    The  Ma- 
rina, 19  Fed.  R.  760]. 

In  Harkness  v.  Russell  (1886),  118 
U.  S.  663,  it  is  said:  "The  first  ques- 
tion to  be  considered  is  whether 
the  transaction  in  question  was  a 
conditional  sale  or  a  mortgage;  that 
is,  whether  it  was  a  mere  agreement 
to  sell  upon  a  condition  to  be  per- 
formed, or  an  absolute  sale  with  a 
reservation  of  a  lien  or  mortgage  to 
secure  the  purchase-money.  If  it 
was  the  latter,  it  is  conceded  that 
the  lien  or  mortgage  was  void  as 
against  third  persons  because  not 
verified  by  affidavit  and  not  recorded 
as  required  by  the  law  of  Idaho.  But, 
so  far  as  words  and  express  intent  of 
the  parties  can  go,  it  is  perfectly  evi- 
dent that  it  was  not  an  absolute  sale, 
but  only  an  agreement  to  sell  upon 
condition  that  the  purchasers  should 
pay  their  notes  at  maturity.  The 
language  is:  'The  express  condition 
of  this  transaction  is  such  that  the 
title  .  .  .  does  not  pass  .  .  . 
until  this  note  and  interest  shall  have 
been  paid  in  full'  If  the  vendees 
should  fail  in  this,  or  if  the  vendors 
should  deem  themselves  insecure  be- 
fore the  maturity  of  the  notes,  the 
latter  were  authorized  to  repossess 
themselves  of  the  machinery,  and 
credit  the  then  value  of  it,  or  the  pro- 
ceeds if  they  should  sell  it,  upon  the 
unpaid  notes.  If  this  did  not  pay  the 
notes,  the  balance  was  still  to  be  paid 
by  the  makers  by  way  of  '  damages 
and  rental  for  said  machinery.'  This 
stipulation  was  strictly  in  accord- 
ance with  the  rule  of  damages  in 


such  cases.  Upon  an  agreement  to 
sell,  if  the  purchaser  fails  to  execute 
his  contract,  the  true  measure  of 
damages  for  its  breach  is  the  differ- 
ence between  the  price  of  the  goods 
agreed  on  and  their  value  at  the  time 
of  the  breach  or  trial,  which  may 
fairly  be  stipulated  to  be  the  pi'ice 
they  bring  on  a  resale.  It  cannot  be 
said,  therefore,  that  the  stipulations 
of  the  contract  were  inconsistent 
with,  or  repugnant  to,  what  the  par- 
ties declared  to  be  their  intention, 
namely,  to  make  an  executory  and 
conditional  contract  of  sale.  Such 
contracts  are  well  known  in  the  law 
and  often  recognized ;  and  when  free 
from  any  fraudulent  intent  are  not 
repugnant  to  any  principle  of  justice 
or  equity,  even  though  possession  of 
the  property  be  given  to  the  proposed 
purchaser." 

In  Nichols  v.  Ashton  (1891),  155 
Mass.  205,  29  N.  E.  R.  519,  where 
goods  were  delivered  to  one  Fred  L. 
Stiff  under  a  contract  purporting  to 
be  a  contract  of  conditional  sale,  but 
which,  it  was  contended,  amounted 
to  a  mortgage  in  legal  effect,  it  was 
said:  "As  to  whether  the  written 
contract  discloses  a  mortgage  from 
Stiff  to  the  plaintiff,  it  purports,  it  is 
true,  to  bind  Stiff  to  make  the  pay- 
ments necessary  to  entitle  him  to  the 
goods,  but  it  declares  that  he  has 
borrowed  and  received  those  goods, 
and  provides  in  the  most  explicit 
way  that  the  title  shall  not  pass 
until  the  whole  amount  of  the  stipu- 
lated value  shall  have  been  paid, 
and   that  the  plaintiffs  also  retain 


480 


CH.  III.]  CONDITIONAL    SALE   OF    SPECIFIC   CHATTELS.  [§  584. 

by  the  most  liberal  construction.  In  a  mortgage  the  title  of 
the  property  is  in  the  mortgagor  as  well  as  the  possession. 
The  mortgage  is  a  mere  incumbrance,  and  the  mortgagor  may 
sell  and  confer  a  good  title  subject  to  such  incumbrance.  The 
two  contracts  are  entirely  different  in  form  and  essentially  so 
in  substance." 

§  584.  The  true  theory. —  A  satisfactory  and  harmoni- 
ous rule  in  respect  of  these  cases  cannot  be  attained  until 
agreement  is  had  as  to  definitions.  In  the  writer's  judgment 
the  term  "  conditional  sale  "  is  a  misnomer  as  applied  to  this 
class  of  contracts.  Still,  notwithstanding  differences  as  to 
names  and  some  difference  as  to  essential  nature,  the  great 
weight  of  authority  is  to  the  effect  that  agreements  of  the  kind 
now  under  consideration,  by  whatever  name  called,  are  con- 
tracts of  sale  subject  to  a  condition  precedent,  namely,  the  pay- 
ment of  the  price.  In  other  words,  they  are  conditional  contracts 
to  sell,  and  are  most  appropriately  described  as  conditional 
contracts  of  sale,  to  distinguish  them  from  the  true  conditional 
sale,  which  is  a  sale  subject  to  a  condition  subsequent,  though 

the  right  to  the  immediate  posses-  which  has  gone  farthest  in  another 
sion.  It  is  impossible  by  construction  direction  contains  nothing  inconsist- 
of  such  a  contract  to  turn  the  trans-  ent  with  our  decision.  Bailey  v.  Her- 
action  between  the  parties  into  a  sale  vey,  135  Mass.  172.  See  McCarthy  v. 
passing  the  title  to  Stiff  and  a  mort-  Henderson,  138  Mass.  310,  312." 
gage  or  pledge  back  by  him.  Such  a  In  Smith  v.  De  Vaughn,  82  Ga.  574, 
result  can  be  reached  only  by  over-  9  S.  E.  R.  425,  De  Vaughn  sold  Smith 
turning  the  instrument,  which  de-  a  mule  and  took  from  him  a  note  for 
clares  that  the  title  does  not  pass,  the  price,  which  note  contained  also 
and  there  is  no  warrant  for  overturn-  the  following  language:  "  And  to  se- 
ing  it.  Blanchard  v.  Cooke,  144  Mass.  cure  the  payment  of  this  note,  I 
207,  221.  If  the  plain  effect  of  the  hereby  mortgage  and  convey  unto 
English  language  needs  confirmation  said  payee,  his  heirs  and  assigns,  the 
by  authority,  it  may  be  mentioned  following  described  property,  to  wit: 
that  contracts  like  the  present  are  One  dark  mare-mule  named  Queen, 
recognized  as  being  what  they  pur-  about  ten  years  old,  for  which  this 
port  to  be  by  statutes.  St.  1884,  ch.  313;  note  is  given  in  part.  Said  mule  to  re- 
Pub.  Stat.,  ch.  192,  §  13.  See  also  main  the  property  of  J.  E.  De  Vaughn 
Carter  v.  Kingman,  103  Mass.  517;  until  paid  for."  Held,  that  this  was  a 
Benner  v.  Puffer,  114  Mass.  376;  Chase  conditional  bill  of  sale  with  reserva- 
v.  Ingalls,  122  Mass.  381.  The  case  tion  of  title,  and  not  a  mortgage. 
31                                               481 


§§  535-587.]  law  of  sale.  [cook  ii. 

the  shorter  term,  "  conditional  sale,"  seems  to  be  so  firmly  fixed 
in  our  legal  nomenclature  that  it  is  not  likely  to  be  abandoned. 

§  585,  On  conditional  contract  to  sell,  no  title  passes  until 
performance. —  Such  being  the  nature  of  the  contracts  of  the 
first  class,  namely,  the  conditional  contracts  to  sell,  it  remains 
next  to  consider  their  effect,  and  especially  the  question  of  their 
effect  upon  the  transfer  of  the  title.  Upon  this  point  the  con- 
clusion, both  in  reason  and  authority,  is  clear  that  until  full1 
payment  of  the  price  no  title  passes  to  the  prospective  pur- 
chaser, unless  this  condition  precedent  of  payment  is  waived.2 

In  the  case  of  the  true  conditional  sale,  however,  that  is,  the 
sale  upon  condition  subsequent,  a  present  title  passes,  subject 
to  be  divested  upon  non-payment. 

g  5S6%  Note  not  payment. —  It  is  very  common  in  these 

cases  for  the  buyer  to  give  his  note  or  notes  to  the  seller  as 
part  of  the  contract,  to  further  evidence  his  agreement  to  pay 
the  price;  and  such  notes  are  often  afterward  taken  to  secure 
the  payment  of  a  deferred  instalment  of  the  price.  Kot  infre- 
quently the  contract  expressly  provides  that  the  title  shall  re- 
main in  the  seller  until  all  such  notes  are  paid;  but  in  the 
absence  of  such  an  express  stipulation  the  usual  rule  would 
apply  and  the  note  would  not  be  regarded  as  payment,  so  as  to 
defeat  the  vendor's  claim,  in  the  absence  of  clear  evidence  of 
an  intention  so  to  treat  it.3 

§  587.  Nature  of  the  interest  acquired  by  vendee. —  Al- 
though it  is  thus  true  that,  in  the  case  of  the  conditional  con- 

lEntire  payment  is  the  condition  Campbell  Printing  Co.  v.  Walker,  114 

unless  otherwise  stipulated.     Brown  N.  Y.  7,  20  N.  E.  R.  625;  Levan  v.  Wil- 

v.  Haynes,  52  Me.  578.  ten,  135  Pa.  St.  61,    19  AtL  R.  045: 

2  Seymour  v.  Farquhar,  93  Ala.  292;  McComb  v.  Donald,  82  Va.  903,  5  S.  E. 

Mcintosh  v.  Hill.  47  Ark.  363;  McRea  R.  558,   and  the  many  other  cases 

v.  Merrifield,  48  Ark.  160;  Simpson  v.  classified  and  arranged  under  §  542 

Shackleford.  49  Ark.  63;  Cincinnati  and  following. 

Safe  Co.  v.Kelly,  54  Ark.  476;  Kohler  3Triplett  v.   Mansur  &   Tebbetts 

v.  Hayes,  41  Cal.  455;  Briggs  v.  Mc-  Implement  Co.  (1900),  —  Ark.  — ,  57 

Ewen,  77  Iowa,  303,  42  N.  W.  R.  303;  S.   W.   R.   261:    Segrist  v.  Crabtree 

Singer  Mfg.  Co.  v.  Bullard,  62  N.  H.  129 ;  (1888),  131  U.  S.  287. 

482 


CH.   III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  51 


tract  to  sell,  the  prospective  purchaser  acquires  no  present  title 
to  the  goods,  he  does  acquire  a  present  interest,  namely,  a  right 
to  become  the  owner  upon  the  performance  of  the  conditions, 
and  also  such  rights  to  possession  in  the  interval  as  the  contract 
expressly  or  impliedly  gives  him. 

In  the  case  of  the  conditional  sale  —  that  is,  the  sale  upon 
condition  subsequent, —  as  has  been  seen,  the  vendee  acquires  a 
defeasible  present  title. 


§  588. 


Whether  assignable  or  leviable. —  In  either 


case  the  interest  or  title  acquired,  where  no  restrictions  are 
imposed  by  the  .con  tract  and  no  personal  considerations  are  in- 
volved, is  usually  deemed  to  be  an  assignable  one,  and  the  party 
may  sell,  assign  or  mortgage  whatever  interest  he  has,1  though 
an  attempt  to  transfer  a  greater  interest  would  ordinarily  be 
regarded  as  a  conversion,  which  would  entitle  the  true  owner 
to  recover  the  goods.2     It  is  not,  however,  in  cases  of  the  lirst 


i  Bailey  v.  Colby  (1856),  34  N.  H. 
29,  66  Am.  Dec.  752;  Sargent  v.  Gile, 
8  N.  H.  325;  Carpenter  v.  Scott,  13 
R.  I.  477.  In  this  case  the  transac- 
tion, "  though  in  form  a  lease,  is  re- 
garded in  law  as  a  conditional  sale. 
Goodell  v.  Fairbrother,  12  R.  L  233; 
Currier  v.  Knapp,  117  Mass.  324; 
Greer  v.  Church,  13  Bush  <Ky.:.  130, 
433,  434.  Under  it  the  vendee  ac- 
quires not  only  the  right  of  possession 
and  use,  but  the  right  to  become  the 
absolute  owner  upon  complying  with 
the  terms  of  the  contract.  These  are 
rights  of  which  no  act  of  the  vendor 
can  divest  him,  and  which,  in  the  ab- 
sence of  any  stipulation  in  the  con- 
tract restraining  him,  he  can  trans- 
fer by  sale  or  mortgage.  Upon  per- 
formance of  the  condition  of  the 
sale,  the  title  to  the  property  vests 
in  the  vendee,  or,  in  the  event  that 
he  has  sold  or  mortgaged  it,  in  his 
vendee  or  mortgagee,  without  fur- 
ther bill  of  sale.  Day  v.  Bassett.  102 
Mass.  445,  417;  Crompton  v.  Pratt, 


105  Mass.  255:  Currier  v.  Knapp,  117 
Mass.  324,  325,  326;  Chase  v.  Ingalls, 
L22  Mass.  381,  382."  Beach's  Appeal, 
58  Conn.  464,  20  Atl.  R.  475;  Ames 
Iron  Works  v.  Richardson,  55  Ark. 
642,  18  S.  W.  R.  381;  Sunny  South 
Lumber  Co.  v.  Neimeyer  Lumber  Co., 
63  Ark.  268,  38  S.  W.  R.  902;  Albright 
v.  Meredith,  58  Ohio  St,  194,  50  N.  K. 
R.  719. 

The  buyer  acquires  a  salable  inter- 
est, but  his  right  to  sell  may  be  re- 
stricted by  the  contract,  and  it  may 
be  made  a  condition  that  he  shall 
not  sell  without  the  previous  consent 
of  the  vendor.  McRea  v.  Merrifield, 
48  Ark.  160. 

It  may  also  be  made  a  condition 
that  the  property  shall  not  be  re- 
moved from  some  place  specified 
without  the  seller's  consent.  Johns- 
ton v.  Whittemore,  27  Mich  463; 
Whitney  v.  MeConnell,  29  Mich.  12; 
Smith  v.  Lozo,  42  Mich.  6. 

2  See  Bailey  v.  Colby,  supra;  Sar- 
gent v.  Gile,  supra. 


483 


§§  589,  590.] 


LAW    OF    SALE. 


HOOK    II. 


class  ordinarily  regarded  as  an  interest  which  can  be  taken  and 
sold  upon  execution,1  or  sold  for  taxes.2 


§589. 


Entitled  to  protection. —  The  interest  acquired 


by  the  vendee  is  clearly  one  entitled  to  protection  as  against 
wrong-doers,  and  he  may  maintain  the  actions  necessary  for 
that  purpose.  As  against  a  wrong-doer  who  has  converted 
them,  the  vendee  is  entitled  to  recover  the  full  value  of  the 
goods,  and  he  may  do  this,  it  has  been  held,  even  though  the 
vendor  may  also  have  demanded  the  goods  from  the  wrong- 
doer.3 

§  590.  Performance  of  condition  inures  to  benefit  of 

transferee. —  Where  a  sale  or  transfer  of  the  vendee's  interest 
is  permissible,  a  performance  of  the  condition  after  such  trans- 
fer, either  by  the  original  vendee  or  his  transferee,  is  sufficient 
to  vest  the  title  in  such  vendee  or  his  transferee  without  a  fur- 
ther bill  of  sale  or  other  act  on  the  part  of  the  vendor.4 


i  Sage  v.  Sleutz,  23  Ohio  St,  1 ;  Nich- 
ols v.  Ashton,  155  Mass.  205;  Crist 
v.  Kleber,  79  Pa,  St.  290;  Enlow  v. 
Klein,  79  Pa.  St.  488;  Marquette  Mfg. 
Co.  v.  Jeffery,  49  Mich.  283;  Dewes 
Brewery  Co.  v.  Merritt,  82  Mich.  198, 
46  N.  W.  R.  379,  9  L.  R.  A.  270; 
Thomas  v.  Parsons,  87  Me.  203,  32 
Atl.  R.  876;  Brown  v.  Haynes,  52  Me. 
578;  Everett  v.  Hall,  67  Me.  497; 
Ilirsch  v.  Steele,  10  Utah,  18,  36  Pac 
R.  49;  Keck  v.  State,  12  Ind.  App. 
119,  39  N.  E.  R.  899;  Reed  v.  Starkey, 
69  Vt.  200,  37  Atl.  R.  297;  Dodd  v. 
Bowles,  3  Wash.  Ter.  383,  19  Pac.  R. 
156;  Miles  v.  Edsall,  7  Mont.  185,  14 
Pac.  R.  701;  Vermont  Marble  Co.  v. 
Brow,  109  Cal.  236,  41  Pac.  R.  1031, 
50  Am.  St.  R.  37;  Rodgers  v.  Bach- 
man,  109  Cal.  552,  42  Pac.  R.  448. 
See  contra,  Fairbank  v.  Phelps,  22 
Pick.  (Mass.)  535;  Newhall  v.  Kings- 
bury, 131  Mass.  445. 

May  attach  to  extent  of  vendee's 


payments.  Hervey  v.  Dimond,  67 
N.  H.  342,  39  Atl.  R  331,  68  Am.  St. 
R.  673;  Beach's  Appeal,  58  Conn.  464, 
20  Atl.  R.  475.  After  default  no 
leviable  interest.  Fields  v.  Williams, 
91  Ala.  502,  8  S.  R,  808;  Jordan  v. 
Wells,  104  Ala.  383,  16  S.  R.  23. 

*  Enlow  v.  Klein,  79  Pa.  St.  488; 
Hovey  v.  Gow,  81  Mich.  314,  45  N.  W. 
R.  985. 

3  Harrington  v.  King,  121  Mass.  269. 
See  also  French  v.  Osmer,  67  Vt.  427, 
32  Atl.  R.  254,  and  Lord  v.  Buchanan, 
69  Vt.  320,  37  Atl.  R.  1048,  60  Am.  St. 
R.  933. 

*  Carpenter  v.  Scott.  13  R.  I.  477 
(citing,  as  above,  Day  v.  Bassett,  102 
Mass.  445,  447;  Crompton  v.  Pratt, 
105  Mass.  255.  258;  Currier  v.  Knapp, 
117  Mass.  324-326;  Chase  v.  Ingalls. 
122  Mass.  381, 383);  Beach's  Appeal.  58 
Conn.  464,  20  Atl.  R.  475  (citing  the 
above-mentioned  Rhode  Island  and 
Massachusetts  cases,  and  Fosdick  v. 


484 


OH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§  591,  592. 

§  591.  Nature  of  the  interest  retained  by  the  vendor. — 

It  is  the  distinguishing  characteristic  of  these  conditional  con- 
tracts to  sell  which  are  now  under  consideration  that  the  seller 
retains  the  title  until  the  price  is  paid.  Although  the  vendee 
acquires  an  interest  in  the  goods  even  before  payment  is  due, 
which  increases,  in  the  case  of  instalment  contracts,  as  succes- 
sive payments  are  made  upon  the  price,  and  although  this  in- 
terest, under  the  decisions  or  statutes  of  several  States,  is  rapidly 
augmenting  in  character,  it  is  still  clear,  unless  all  distinctions 
are  to  be  lost  sight  of,  that  the  legal  title  remains  in  the  seller. 
This  legal  title  would  draw  after  it  the  right  of  possession 
also,  unless  the  seller  has  parted  with  that  right  during  the 
time  being,  as  stated  in  a  following  section.  If  the  vendee 
has  not  the  possession,  and  no  other  notice  of  his  right  exists, 
it  is  of  course  possible  for  the  vendor  who  remains  in  posses- 
sion to  cut  off  the  vendee's  rights  in  the  goods  themselves  by 
a  transfer  of  them  to  a  bona  y'<le  purchaser;  but  where  the 
vendee  has  possession,  or  there  is  statutory  or  actual  notice  of 
his  rights,  the  interest  remaining  in  the  seller  must  be  such  as 
is  consistent  with  the  rights  of  the  vendee  under  the  contract. 

§  592.  May  be  sold,  seized,  etc.,  subject  to  contract.— 

Subject  to  the  contract,  therefore,  the  vendor  may,  before  any 
default  by  the  vendee,  sell,  mortgage  or  assign  his  remaining 
title,1  or  it  may  be  seized  and  sold  upon  execution  against  him. 
The  vendor  may  also  maintain  any  action  which  can  be  based 
upon  ownership  alone.2  After  default,  which  usually,  unless 
waived,  operates  to  restore  the  vendor's  right  of  possession,  he 

Schall,  99  U.  S.  235;  note  to  Miller  v.  a  horse,  which  was  the  subject  of  the 

Steen.  89  Am.  Dec.  128);  Ames  Iron  conditional  contract,  had  been  killed 

Works  v.  Richardson,  55  Ark.  642,  18  by  a  railroad   company,  the   court 

S.  W.  R.  381.  said  that  either  the  vendor  or  the 

^urnell  v.   Marvin,    44  Vt.   277;  vendee  might  sue.    " The  conditional 

Kimball  Co.  v.  Mellon,  80  Wis.  133,  vendee  could  have  sued  because  of 

48    N.    W.     R.    1100;     Ross-Mehan  his  special  ownership,  and  the  vendor 

Foundry  Co.  v.  Ice  Co.,  72  Miss.  608.  had  also  the  right  of  action  because 

Everett  v.   Hall,   67    Me.   497,    goes  of  his  retained  legal  ownership:  the 

much  further.  recovery  by  one,  however,  being  a 

2  In  Smith  v.  Gufford,  36  Fla.  481,  bar  to  any  further  recovery  by  the 

18  S.  R.  717,  51  Am.  St.  R.  37,  where  other.     Kent  v.  Buck,  45  Vt.  18;  St. 

485 


§  593.] 


LAW   OF   SALE. 


[BOOK    II. 


may  deal  with  the  goods,1  or  bring  actions,2  in  any  manner 
permitted  to  one  in  whom  title  and  the  right  to  immediate 
possession  are  united. 

a  593. Vendor  may  assign  his  remaining  interest  and 


the  conditional  contract  of  sale  together. —  The  vendor  may 
also  ordinarily  transfer  his  interest  in  the  property  and  in  the 
conditional  contract  of  sale  together,  so  as  to  invest  his  assignee 
with  all  the  rights  and  remedies  which  the  contract  confers.3 
He  might  not,  however,  without  making  the  contract  absolute, 
separate  it  into  parts,  as  by  an  absolute  transfer  of  notes  given 
for  the  price,  while  he  attempted  to  retain  the  title  and  the 
remedies  in  his  own  hand.4 


Louis,  etc.  Ry.  Co.  v.  Biggs,  50  Ark. 
169,  6  S.  W.  R.  724;  Harrington  v. 
King,  121  Mass.  269." 

In  Lord  v.  Buchanan,  69  Vt.  320, 
37  Atl.  R.  1048,  60  Am.  St.  R.  933,  a 
stove  sold  conditionally  had  been 
wrongfully  taken  from  the  vendee 
by  a  third  person.  The  vendee  sued 
the  wrong-doer  and  recovered  the 
f  nil  value  and  special  damages.  The 
vendor  then  sued  the  wrong-doer  in 
trespass  and  trover,  and  claimed  to 
be  entitled  to  at  least  nominal  dam- 
ages; but  it  was  held  that  his  action 
could  not  be  maintained,  as  both 
were  for  the  same  wrong  —  the  un- 
lawful taking.  It  was  conceded, 
however,  that,  for  an  injury  to  the 
reversionary  interest,  a  recovery  by 
one  having  only  a  possessory  intei'est 
for  an  injury  to  his  interest  would 
not  be  a  bar. 

*In  Hubbard  v.  Bliss,  12  Allen 
(Mass.),  590,  it  is  said  that  where  per- 
sonal property  has  been  sold  and 
conveyed  on  a  condition  which  is 
afterwards  broken  by  the  purchaser, 
the  original  owner  may,  by  a  new 
sale,  convey  a  valid  title  to  a  new 
purchaser  without  first  taking  actual 
manual  possession  of  the  property. 


2  Where,  after  default,  the  goods 
in  the  vendee's  possession  had  been 
levied  upon  by  his  creditors,  the 
court  in  Alabama  said  of  an  action 
of  trespass  by  the  vendor:  "Having 
the  general  property,  which  drew  to 
itself  the  constructive  possession  — 
the  general  property  and  right  to 
immediate  possession  at  the  time  of 
the  levy, —  plaintiff  may  maintain  an 
action  of  trespass  against  defend- 
ants if  they  tortiously  took  the  prop- 
erty from  the  possession  of  the 
vendee,  who  was  in  such  case  his 
mere  bailee.*'  Fields  v.  Williams,  91 
Ala.  502,  8  S.  R.  808. 

Vendor  may  maintain  an  action 
on  the  case,  for  injury  to  the  prop- 
erty, against  a  bailee  of  the  vendee, 
after  condition  broken ;  and  the  fact 
that  the  bailee  had  settled  with  the 
vendee  for-  such  injury  is  imma- 
terial. French  v.  Osmer,  67  Vt.  427, 
32  Atl.  R.  254.  Compare  Lord  v.  Bu- 
chanan, supra. 

s  Landigan  v.  Mayer  ( 1898\  32  Oreg. 
245,  51  Pac.  R.  649,  67  Am.  St.  R.  521. 

4  Merchants'  Bank  v.  Thomas  (1887), 
69  Tex.  237;  Parlin,  etc.  Co.  v.  Har- 
rell  (1894),  8  Tex.  Civ.  App.  368,  27  S. 
W.  R.  1087. 


486 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§  594,  595. 

§  594.  The  right  of  possession, —  A  conditional  contract  to 
sell  carries  with  it,  jproprio  vigore,  no  right  to  the  possession  of 
the  property  by  the  vendee  before  payment.  Such  a  right,  if 
it  exists,  must  be  conferred  by  some  express  or  implied  term 
of  the  agreement,  and  the  contract  will,  therefore,  be  the  source 
of  the  right  and  the  measure  and  test  of  its  continuance.  A 
contract  of  this  kind  consists,  consciously  or  unconsciously,  of 
two  parts,  of  which  the  first  may  exist  without  the  second: 
1.  The  agreement  to  sell  and  buy.  2.  The  agreement  as  to 
possession  in  the  interval.  The  agreement  to  give  the  vendee 
possession  need  not  be  express;  it  may  be  implied  from  custom 
or  the  evident  intention  of  the  parties.1  It  may  also  be  noth- 
ing more  than  a  mere  revocable  license. 

§  595.  .  The  vendee's  right  of  possession  may,  therefore, 

be  co-extensive  with  the  duration  of  the  contract,  or  it  may 
be  terminable  while  the  contract  in  other  respects  remains  in 
force.  The  continuance  of  the  agreement  to  sell  may,  more- 
over, be  based  upon  one  condition,  while  the  continuance  of 
the  right  of  possession  may  be  based  upon  another.2  As  was 
said  in  a  case3  in  California:  "The  person  with  whom  such  a 
contract  is  made  has  only  such  right  to  the  possession  of  the 
property  as  the  contract  gives,  and  if  the  contract  provides 
that  the  right  of  possession  shall  cease  upon  the  failure  to  per- 
form a  specified  condition,  the  owner  may,  upon  the  failure  of 
the  other  party  to  perform  the  condition,  resume  the  posses- 
sion." Where,  however,  no  other  provision  is  made,  the  right 
of  possession  will  usually  be  terminated  by  default  in  pay- 
ment.4 

1  Thus  in  Richardson  v.  Great  "West-  ment  was  made,  but  that  he  was  not 

ern  Mfg.  Co.,  3  Kan.  App.  445, 43  Pac.  entitled  to  possession  until  default 

R.  809,  where  the  contract  provided  was  made  in  payment, 

for  the  conditional  sale  of  new  ma-  2See  Hegler  v.  Eddy.  53  Cal.  597; 

chinery,  and  stipulated  that  the  title  Tufts  v.  D'Arcambal,  85  Mich.  185, 24 

should   remain   in  the   seller  until  Am.  St.  R  79.  12  L.  R.  A  446. 

fully  paid  for,  and  that  upon  default  3  Hegler  v.  Eddy,  supra. 

in  any  of  the  payments  the  seller  4  Wiggins  v.  Snow,  89  Mich.  476, 50 

might  take  such  machinery  into  his  N.  W.  R.  991;  Ryan  v.  Wayson,  108 

possession,  it  was  held  that  the  title  Mich.  519,  66  N.  "W.  R.  370. 
remained  in  the  seller  until  full  pay- 

487 


§§  596,  597.]  law  of  sale.  [book  ii. 

g  5%.  .  If,  on  the  other  hand,  the  contract  is  deemed 

to  be  one  of  true  conditional  sale, —  that  is,  a  present  sale  sub- 
ject to  a  condition  subsequent,—  then  the  right  of  possession 
until  default  passes  as  an  incident  to  the  ownership;  it  does 
not  depend  alone  upon  the  contract,  and  cannot  be  defeated 
before  the  defeasance  of  the  sale  except  by  virtue  of  some  ex- 
press provision  to  that  effect.1 

§597.  Condition  good  against  creditors  of  vendee. —  The 

condition  reserving  title  in  the  seller  until  the  goods  are  paid 
for  is,  as  has  been  already  intimated,  effective  not  only  against 
the  original  vendee,  but,  unless  some  statute  intervenes,  it  is 
operative  also  to  preserve  the  right  of  the  conditional  vendor, 
if  guilty  of  no  laches,  against  levies  and  seizures  by  the  cred- 
itors of  the  vendee  and  assignments  of  the  goods  for  the  bene- 
fit of  his  creditors.2 

This  is,  moreover,  true,  even  though  the  goods  were  delivered 
under  the  contract  to  the  conditional  purchaser,  who  obtained 
them  for  the  express  purpose  of  resale  in  his  business,3  or  for 
the  purpose  of  consuming  them  in  their  use;4  since  neither  of 
these  purposes  furnishes  any  warrant  for  the  appropriation  of 
the  goods  by  the  buyer's  creditors. 

iSee  Newhall  v.  Kingsbury,  131  v.  Lang,  67  N.  H.  348,  31  Atl.  R.  20; 

Mass.  445.  Hirsch  v.  Steele,  10  Utah,  18,  36  Pac. 

2  Vermont  Marble  Co.  v.  Brow,  109  R.  49;  Reed  v.  Starkey,  69  Vt.  200,  37 

Cal.  236,  41  Pac.  R.  1031,  50  Am.  St.  Atl.  R.  297;  Dodd  v.  Bowles,  3  Wash. 

R.  37;  Rodgers  v.  Bachman,  109  Cal.  Ter.  383,  19  Pac.  R.  156.     Such  goods 

552,  42  Pac.  R.  448;  Perkins  v.  Mett-  cannot  be  distrained  for  rent.    Tufts 

ler,  126  Cal.  100,  58  Pac.  R.  384;  Keck  v.  Stone,  70  Miss.  54,  11  S.  R.  792. 

v.  State,  12  Ind.  App.  119,  39  N.  E.  R.  3  Rogers  v.  Whitehouse,  71  Me.  222; 

899;  Ellis  v.  Holland,  98  Ga.  154,  26  Lewis  v.  McCabe,  49  Conn.  141,  44 

S.  E.  R.  735;  Nichols  v.  Ashton,  155  Am.  R.  217;   New  Haven  Wire  Co. 

Mass.  205;  Brown  v.  Haynes,  52  Me.  Cases,  57  Conn.  352,  18  Atl.  R.  266,  5 

578;    Everett    v.   Hall,   67   Me.   497;  L.  R.  A.  300;  Bur  bank  v.  Crooker,  7 

Thomas  v.  Parsons,  87  Me.  203,  32  Gray  (Mass.),  158,  66  Am.  Dec.  470; 

Atl.  R.  876;  Marquette  Mfg.  Co.  v.  Dewes  Brewery  Co.  v.  Merritt,  supra. 

Jeffery,  49  Mich.  283,  13  N.  W.  R  592;  But  contra,  see  Ludden  v.  Hazen,  31 

Dewes   Brewery  Co.   v.  Merritt,  82  Barb.  (N.Y.)  650;  Bonesteel  v.  Flack, 

Mich.  198,  46  N.  W.  R.  379,  9  L.  R.  A.  41  Barb.  435;   Powell  v.  Preston.  1 

270;  Miles  v.  Edsall,  7  Mont.  185,  14  Hun  (N.  Y.),  513. 

Pac.  R.  701;  Cleveland  Mach.  Works  4  Armington  v.  Houston,  38  Vt.  448. 

483 


CH.  III.]        CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§  59S,  599. 


§  598.  .  The  liability  of  the  goods  to  the  claims  of  the 

buyer's  creditors  has  been  enlarged  in  several  States,  as  will  be 
seen,  by  statute,  as  a  penalty  for  not  filing  or  recording  the 
contract  in  pursuance  of  legislative  enactment;1  but,  in  the  ab- 
sence of  such  legislation,  the  rule  is  that  already  stated. 

§  599.  Condition  good  even  against  bona  fide  purchasers. — 

It  is  thus  clear,  as  has  been  seen,  that  the  conditional  contract 
of  sale  is  effective  to  preserve  the  title  of  the  vendor  from  the 
claims  of  the  vendee's  creditors.2  It  is  also  effective  as  against 
subsequent  purchasers  from  the  vendee  with  notice  of  the  con- 
dition.3 Whether  it  is  also  operative  against  bona  fide  purchas- 
ers from  the  vendee  who  have  no  notice  of  the  condition  has 
been  the  subject  of  much  controversy;  but  it  is  now  settled  by 
the  great  weight  of  authority  that,  unless  otherwise  declared 
by  statute,  such  bona  fide  purchaser  acquires  no  better  title  than 
his  vendor  had.  Such  has  been  the  holding  in  Alabama,4  Ar- 
kansas,5 California,6  Connecticut,7  Delaware,8  Florida,9  Georgia,10 


1  These  statutes  are  more  fully  re- 
ferred to  in  a  later  section;  but  see 
National  Cash  Reg.  Co.  v.  Broeksmit, 
103  Iowa,  271,  72N.W.R.52G;  Peterson 
v.  Tufts,  34  Neb.  8,  51  N.  W.  R.  297. 

2  See  ante,  %  588. 

3  First  Nat.  Bank  v.  Tufts,  53  Kan. 
710,  37  Pac.  R.  127;  Rhode  Island 
Loco.  Works  v.  Lumber  Co.,  91  Ga. 
639,  17  S.  E.  R.  1012;  Batchelder  v. 
Sanborn,  66  N.  H.  192,  22  Atl.  R.  535. 

*  Sumner  v.  Woods,  67  Ala.  139,  42 
Am.  R.  104  (overruling  Sumner  v. 
Woods,  52  Ala.  94,  and  Dudley  v. 
Abner,  52  Ala.  572);  Weinstein  v. 
Freyer,  93  Ala.  257,  9  S.  R.  285,  12  L. 
R.  A.  700;  Fairbanks  v.  Eureka  Co., 
67  Ala.  109,  42  Am.  R.  105,  n. ;  Ensley 
Lumber  Co.  v.  Lewis,  121  Ala.  94,  25 
S.  R.  729.  See  also  Tanner  Engine  Co. 
v.  Hall,  89  Ala.  628,  7  S.  R.  187;  Sey- 
mour v.  Farquhar,  93  Ala.  292,  8  S.  R. 
466.  Are  now  required  to  be  recorded. 

5  Mcintosh  v.  Hill,  47  Ark.  363,  1  S. 
W.  R.  680;  McRae  v.  Merrifield,  48 


Ark.  160,  2  S.  W.  R.  780;  Simpson  v. 
Shackleford,  49  Ark.  63,  4  S.  W.  R. 
165;  Triplett  v.  Mansur,  etc.  Co.,  — 
Ark.  — ,  57  S.  W.  R.  261. 

6  Houser-Haines  Mfg.  Co.  v.  Har- 
grove, 129  Cal.  90,  59  Pac.  R.  947; 
Palmer  v.  Howard,  72  Cal.  293,  1  Am. 
St.  R.  60;  Putnam  v.  Lamphier,  36 
Cal.  151;  Kohler  v.  Hayes,  41  Cal.  455; 
Rodgers  v.  Bachman,  109  Cal.  552,  42 
Pac.  R.  448. 

7  See  Lewis  v.  McCabe.  49  Conn. 
141,  44  Am.  R.  217;  Hart  v.  Carpen- 
ter, 24  Conn.  427;  Tomlinson  v.  Rob- 
erts, 25  Conn.  477;  Cragin  v.  Coe,  29 
Conn.  51;  Hughes  v.  Kelly,  40  Conn. 
148;  Brown  v.  Fitch.  43  Conn.  512. 

8  Mathews  v.  Smith,  8  Houst.  22,  31 
Atl.  R.  879. 

»  Campbell  Press  Co.  v.  Walker,  22 
Fla.  412;  Roof  v.  Pulley  Co.,  36  Fla. 
284, 18  S.  R.  597.  But  see  Hudnall  v. 
Paine,  39  Fla.  67,  21  S.  R.  791. 

io  Sims  v.  James,  62  Ga.  200.  Now 
changed  by  statute. 


489 


§  599.] 


LA.W    OF    SALE. 


[BOOK    II. 


Indiana,1  Iowa,2  Kansas,3  Maine,4  Massachusetts,5  Michigan," 
Missouri,7  Mississippi,8  Montana,9  Nebraska,10  New  Hampshire,11 


i  Baals  v.  Stewart.  109  Ind.  371,  9 
N.  E.  R  403,  citing  many  cases;  Hod- 
son  v.  Warner,  60  Ind.  214;  Dunbar 
v.  Rawles,  28  Ind.  225,  92  Am.  Dec. 
311. 

a  Baker  v.  Hall,  15  Iowa,  277;  Rob- 
inson v.  Chapline,  9  Iowa,  91;  Bailey 
v.  Harris,  8  Iowa,  331,  74  Am.  Dec. 
312.  Now  changed  by  statute  requir- 
ing contracts  to  be  in  writing  and  re- 
corded Code  1873,  §  1922.  See,  as  to 
the  construction  and  application  of 
the  statute,  Pash  v.  Weston,  52  Iowa, 
675,  3  N.  W.  R.  713;  Moseley  v.  Shat- 
tuck,  43  Iowa,  540;  Knoulton  v.  Red- 
en  baugh,  40  Iowa,  114;  Budlong  v. 
Cottrell,  64  Iowa,  234,  20  N.  W.  R.  166 
(distinguishing  Singer  Sew.  M.  Co.  v. 
Holcomb,  40  Iowa,  33);  Wright  v. 
Barnard,  89  Iowa,  166,  56  N.  W.  R. 
424. 

3  Sumner  v.  McFarlan,  15  Kan.  600. 
Now  changed  by  statute.  See  Mo- 
line  Plow  Co.  v.  Witham,  52  Kan.  185, 
34  Pac.  R.  751. 

4  Brown  v.  Haynes,  52  Me.  578; 
Whipple  v.  Gilpatrick,  19  Me.  427. 
Now  changed  by  statute.  See  Hill 
v.  Nutter,  82  Me.  199,  19  Atl.  R.  170; 
Hopkins  v.  Maxwell,  91  Me.  247,  39 
Atl.  R.  573. 

5  Coggill  v.  Hartford,  etc.  R.  Co.,  3 
Gray  (Mass.),  545;  Sargent  v.  Metcalf, 
5  Gray  (Mass.),  306,  66  Am.  Dec.  368; 
Hirschorn  v.  Canney,  98  Mass.  149; 
Blanchard  v.  Child,  7  Gray  (Mass.), 
155;  Zuchtmann  v.  Roberts,  109 
Mass.  53,  12  Am.  R.  663;  Benner  v. 
Puffer,  114  Mass.  376;  Wentworth  v. 
Woods  Mach.  Co.,  163  Mass.  28,  39  N. 
E.  R.  414;  Cottrell  v.  Carter,  173  Mass. 
155,  53  N.  E.  R.  375. 

6Couse  v.  Tregent,  11  Mich.  65; 
Dunlap  v.  Gleason,  16  Mich.  158;  Fi- 


field  v.  Elmer,  25  Mich.  48;  Thirlby 
v.  Rainbow,  93  Mich.  164,  53  N.  W.  R 
159;  Lansing  Iron  Works  v.  Wilbur, 
111  Mich.  413,  69  N.  W.  R.  667;  Petty- 
place  v.  Groton  Mfg.  Co.,  103  Mich. 
155,  note;  Dewes  Brewery  Co.  v. 
Merritt,  82  Mich.  198,  46  N.  W.  R.  379, 
9  L.  R.  A.  270;  Lansing  Iron'  &  En- 
gine Works  v.  Walker,  91  Mich.  409, 
51  N.  W.  R.  1061,  30  Am.  St.  R.  488; 
Gill  v.  De  Arniant,  90  Mich.  430,  51 
N.  W.  R.  527;  Marquette  Mfg.  Co. 
v.  Jeffery,  49  Mich.  283,  13  N.  W.  R. 
592. 

7  Ridge  way  v.  Kennedy,  52  Mo.  24; 
Little  v.  Page.  44  Mo.  412;  Parmlee 
v.  Catherwood,  36  Mo.  479;  Robbins 
v.  Phillips,  68  Mo.  100;  Wangler  v. 
Franklin,  70  Mo.  659.  But  now,  by 
statute,  the  contract  must  be  in 
writing  and  recorded.  R.  S.  1879, 
§  2507.  See  Collins  v.  Wilhoit,  108 
Mo.  451, 18  S.  W.  R.  839;  Redenbaugh 
v.  Kelton,  130  Mo.  558,  32  S.  W.  R.  67. 

8  Ketchum  v.  Brennan,  53  Miss.  596; 
Van  Range  Co.  v.  Allen  (Miss.),  7  S. 
R.  499;  Journey  v.  Priestley,  70  Miss. 
584,  12  S.  R.  799.  But  see  Paine  v. 
Hall  Safe  Co.,  64  Miss.  175;  Adams 
v.  Berg,  67  Miss.  234,  7  S.  R.  225;  Jen- 
nings v.  Wilson,  71  Miss.  42,  14  S.  R. 
259. 

9Heinbockle  v.  Zugbaum,  5  Mont. 
344,  5  Pac.  R.  897,  51  Am.  R.  59. 

i°Aultman  v.  Mallory,  5  Neb.  178, 
25  Am.  R.  478.  Now  changed  by  stat- 
ute. See  Osborne  Co.  v.  Piano  Mfg. 
Co.,  51  Neb.  502,  70  N.  W.  R.  1124; 
Campbell  Printing  Press  Co.  v.  Dyer, 
46  Neb.  830.  65  N.  W.  R.  904. 

ii  Weeks  v.  Pike,  60  N.  H.  447;  King 
v.  Bates,  57  N.  H.  446:  Kimball  v. 
Jack  man,  42  N.  H.  242.  Now  changed 
by  statute. 


490 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  COO. 


New  Jersey,1  New  Mexico,2  New  York,3  North  Carolina,4  Ohio,5 
Oregon,6  Rhode  Island,7  South  Carolina,8  Tennessee,9  Texas,10 
Utah,11  Vermont,12  Virginia,13  Washington,14  and  perhaps  other 
States;15  in  Canada,16  and  the  supreme  court  of  the  United 
States;17  though  since  the  decisions  referred  to,  the  rule  in  sev- 
eral of  the  States  mentioned  has  been  changed  by  statute. 


600. 


In  a  few  States,  however,  the  decisions,  based 


largely  upon  the  theory  of  a  condition  subsequent  or  of  con- 


i  Cole  v.  Berry,  42  N.  J.  L.  308,  36 
Am.  E.  511;  Marvin  Safe  Co.  v.  Nor- 
ton, 48  N.  J.  L.  410,  7  Atl.  R.  418,  57 
Am.  R.  566.  Now  changed  by  stat- 
ute. See  Knowles  Loom  Works  v. 
Vacher,  57  N.  J.  L.  490,  31  Atl.  R.  306. 

2Redewill  v.  Gillen,  4  N.  Mex.  72, 
12  Pac.  R.  872.  Such  contracts  are 
not  within  chattel  mortgage  record- 
ing acts.  Maxwell  v.  Tufts,  8  N.  Mex. 
396,  45  Pac.  R.  979. 

3  Ballard  v.  Burgett,  40  N.  Y.  314; 
Austin  v.  Dye,  46  N.  Y.  500;  Comer 
v.  Cunningham,  77  N.  Y.  391,  33  Am. 
R.  626.     Now  changed  by  statute. 

4  Clayton  v.  Hester,  80  N.  C.  275; 
Vassar  v.  Buxton,  86  N.  C.  335.  Now 
changed  by  statute  requiring  record- 
ing as  to  bona  fide  purchasers,  though 
good  as  between  the  parties.  Perry 
v.  Young,  105  N.  C.  463,  11  S.  E.  R. 
511;  Harrell  v.  Godwin,  102  N.  C.  330, 
8  S.  E.  R.  925;  Kornegay  v.  Korne- 
gay,  109  N.  Q.  188,  13  S.  E.  R.  770. 

5  Sanders  v.  Keber,  28  Ohio  St.  630; 
Call  v.  Seymour,  40  Ohio  St.  670. 
Now  regulated  by  statute.  See  Case 
Mfg.  Co.  v.  Garven,  45  Ohio  St.  289. 

6  Singer  Mfg.  Co.  v.  Graham,  8 
Oreg.  17,  34  Am.  R.  572. 

7  Apparently.  See  Goodell  v.  Fair- 
brother,  12  R.  I.  233,  34  Am.  R.  631. 
See  also  Carpenter  v.  Scott,  13  R.  I. 
477. 

8  Perhaps.    See  Herring  v.  Cannon, 


21  S.  C.  212,  53  Am.  R.  661,  referring 
to  cases.  The  question  was  settled 
by  statute  in  1843,  which  rendered 
void  all  secret  reservations  of  title  to 
goods  apparently  sold  and  delivered. 
9  But  now  see  Cowan  v.  Singer 
Mfg.  Co.,  92  Tenn.  376,  21  S.  W.  R. 
663. 

lOLeath  v.  Uttley,  66  Tex.  82,  17  S. 
W.  R.  401.     Now  changed  by  statute. 

11  Apparently.  See  Lippincott  v. 
Rich  (1900),  —  Utah,  — ,  61  Pac.  R. 
526. 

12  Now  changed  by  statute.  See 
Roberts  v.  Hunt,  61  Vt.  612,  17  Atl. 
R.  1006;  Desany  v.  Thorp,  70  Vt.  31, 
39  Atl.  R.  309. 

13McComb  v.  Donald,  82  Va.  903. 
Now  changed  by  statute.  See  Hash 
v.  Lore,  88  Va.  716,  14  S.  E.  R.  365; 
Callahan  v.  Young,  90  Va.  574,  19  S. 
E.  R.  163;  Arbuckle  v.  Gates,  95  Va. 
802,  30  S.  E.  R.  496. 

14  Now  regulated  by  statute.  John- 
ston v.  Wood,  19  Wash.  St.  441,  53 
Pac.  R.  707. 

15  See  Warner  v.  Roth,  2  Wyo.  63; 
Bunce  v.  McMahon,  6  Wyo.  24,  42 
Pac.  R.  23. 

16  Walker  v.  Hyman,  1  Ont.  App. 
345. 

17  See  the  exhaustive  review  of  the 
cases  in  Harkness  v.  Russell,  118  U.  S. 
663. 


491 


§  601.] 


LAW    OF    SALE. 


[BOOK    II. 


structive  fraud,  protect  the  claims  of  the  bona  fide  purchaser, 
without  a  statute.1 


601. 


Rule  does  not  apply  when  goods  bought  to  be 


resold. —  But  the  rule  permitting  the  conditional  vendor  to  re- 
take his  goods  in  case  of  default,  even  from  a  bona  fide  pur- 
chaser from  his  conditional  vendee,  very  obviously  should  not, 
and  does  not,  apply  in  those  cases  in  which  the  goods  have 
been  delivered  to  the  conditional  vendee  for  the  very  purpose 
of  being  resold  to  such  a  purchaser,  as  where  a  retail  dealer 
obtains  goods  from  a  wholesale  dealer  upon  the  agreement  that 
the  title  to  the  goods  as  a  bulk  shall  remain  in  the  latter,  but 
the  retail  dealer  is  impliedly,  if  not  expressly,  permitted  to  sell 
from  the  bulk  in  the  usual  course  of  trade.2     A  sale  of  the 


1  In  Illinois  the  bona  fide  pur- 
chaser is  protected.  See  Murch  v. 
Wright,  46  111.  487,  95  Am.  Dec.  455; 
Michigan  Central  R.  R.  Co.  v.  Phil- 
lips, 60  I1L  190;  Lucas  v.  Campbell,  88 
111.  447;  Van  Duzor  v.  Allen,  90  111. 
499. 

In  Colorado.  See  Jones  v.  Clark, 
20  Colo.  353,  38  Pac.  R.  371;  overrul- 
ing George  v.  Tufts,  5  Colo.  162. 

In  Kentucky  the  bona  fide  pur- 
chaser is  protected.  See  Vaughn  v. 
Hopson,  10  Bush,  337;  Greer  v. 
Church,  13  Bush,  430.  So  in  Mary- 
land. See  Hall  v.  Hinks,  21  Md.  406; 
Butler  v.  Gannon,  53  Md.  333;  Cen- 
tral Trust  Co.  v.  Arctic  Mfg.  Co.,  77 
Md.  202,  26  Atl.  R.  493;  Lincoln  v. 
Quynn,  68  Md.  299,  11  Atl.  R.  848,  6 
Am.  St.  R.  446. 

In  Pennsylvania,  it  is  said  in  Ryle 
v.  Loom  Works,  87  Fed.  R.  976,  it  is 
the  established  rule  "  that  a  sale  and 
delivery  of  personal  property,  with 
an  agreement  that  the  ownership 
shall  remain  in  the  vendor  until  the 
purchase  price  is  paid,  is  ineffectual 
and  void  as  respects  the  creditors  of 


the  vendee  and  innocent  purchasers; 
and  the  rule  applies  whatever  may 
be  the  form  of  the  agreement.  Haak 
v.  Linderman,  64  Pa.  St.  499;  Stadt- 
feld  v.  Huntsman,  92  Pa.  St.  53,  37 
Am.  R.  661 ;  Thompson  v.  Paret,  94 
Pa.  St.  275;  Brunswick,  etc.  Co.  v. 
Hoover,  95  Pa.  St.  508;  Forrest  v.  Nel- 
son, 108  Pa.  St.  481;  Dearborn  v.  Ray- 
sor,  132  Pa.  St.  231,  20  Atl.  R.  690; 
Farquhar  v.  McAlevy,  142  Pa.  St.  233, 
21  Atl.  R.  811;  Ott  v.  Sweatman,  166 
Pa.  St.  217,  31  Atl.  R  102.  But  where 
personal  property  is  delivered  under 
a  contract  of  bailment,  accompanied 
with  an  agreement  for  a  future  sale 
to  the  bailee  on  the  payment  of  a 
certain  price,  the  ownership  of  the 
bailor  is  preserved,  and  the  trans- 
action is  valid,  even  as  against  the 
creditors  of  the  bailee  and  pur- 
chasers. Rowe  v.  Sharp,  51  Pa.  St. 
26;  Enlow  v.  Klein,  79  Pa.  St.  488; 
Goss  Printing  Press  Co.  v.  Jordan, 
171  Pa.  St.  474,  32  Atl.  R.  1031." 

2  In  Weston  v.  Brown  (1899),  158 
N.  Y.  360,  53  N.  E.  R.  36,  the  agree- 
ment    expressly    declared    that    it 


492 


CH.  III.]  CONDITIONAL    SALE   OF    SPECIFIC    CHATTELS. 


[§  601, 


goods  in  bulk  might  be  deemed  unauthorized  and  pass  no  title, 
but  the  retail  purchaser  in  the  usual  course  of  business  would, 
where  such  resales  were  expressly  or  impliedly  authorized,  ob- 
tain a  good  title,  though  the  retail  dealer  might  fail  in  paying 
for  the  goods.1 


should  not  be  construed  as  restrict-    a  quantity  of  flour,  mortgaged  it  with 


ing  the  vendee's  right  to  sell  to  bona 
fide  purchasers;  but  if  so  sold  the 
proceeds  should  belong  to  the  vendor 
until  the  purchase  price  was  paid. 
As  to  these  proceeds,  the  vendor  may 
recover  them  from  the  vendee  in  an 
action  at  law,  and  need  not  go  into 
equity  for  accounting. 

i  Rogers  v.  Whitehouse,  71  Me.  222: 
"Winchester  Mfg.  Co.  v.  Carman,  109 
Ind.  31,  58  Am.  R.  382;  Burbank  v. 
Crooker,  7  Gray  (Mass.),  158,  06  Am. 
Dec.  470;  New  Haven  Wire  Co.'s 
Cases,  57  Conn.  352,  18  Atl.  R.  266; 
Stone  v.  Waite,  88  Ala.  599;  Leigh  v. 
Railroad  Co.,  58  Ala.  165;  Devlin  v. 
O'Neill,  6  Daly  (N.  Y.),  305:  Ludden 
v.  Hazen,  31  Barb.  (N.  Y.)  650.  Au- 
thority to  sell  at  retail,  as  in  the  case 
of  goods  consigned,  does  not  justify 
a  sale  at  wholesale.  Powell  v.  Wal- 
lace (1890),  44  Kan.  656,  25  Pac.  R. 
42;  Romeo  v.  Martucci  (1900),  72 
Conn.  504,  45  Atl.  R,  99,  47  L.  R.  A. 
601.  There  is  no  right  to  sell  again, 
though  the  conditional  vendor  knew 
that  the  conditional  vendee  was  a 
dealer  and  had  no  use  for  the  goods 
except  for  resale,  if  the  contract  ex- 
pressly provides  that  the  latter  should 
not  sell  them  till  paid  for,  and  a 
bona  fide  sub-vendee  gets  no  title 
as  against  the  original  conditional 
vendor.  Sargent  v.  Metcalf,  5  Gray 
(Mass.),  306,  66  Am.  Dec.  368. 

But  in  Poorman  v.  Witman,  49 
Kan.  697,  31  Pac.  R.  370,  where  a 
vendee,  who  was  authorized  to  resell 


the  rest  of  his  stock  for  pre-existing 
debts,  and  the  mortgagees  on  fore- 
closure sold  the  whole  stock,  includ- 
ing this  flour,  to  a  third  person,  it 
was  held  that  the  latter  obtained  a 
good  title. 

In  Columbus  Buggy  Co.  v.  Turley, 
73  Miss.  529,  19  S.  R.  232,  55  Am.  St. 
R.  550,  there  was  authority  to  resell, 
the  proceeds  to  be  held  as  agent  for 
the  vendor.  The  vendee  sold  the 
goods  to  one  of  his  creditors  in  satis- 
faction of  the  latter*s  claim,  the  cred- 
itor having  no  knowledge  of  the 
original  vendor's  claim.  Held,  that 
the  creditor  obtained  a  good  title. 

Where  the  vendor  lias  licensed  the 
vendee  to  sell  the  property  and  ac- 
count to  him  for  the  proceeds,  a 
sham  sale  will  not  cut  off  his  lien, 
but  the  sub-vendee  is  not  bound  to 
see  that  the  proceeds  are  actually 
paid  to  the  original  vendor  (Ufford 
v.  Winchester,  69  Vt.  542,  38  Atl.  R. 
239),  unless  that  is  one  of  the  con- 
ditions of  the  license.  White  v. 
Langdon,  30  Vt,  599. 

Permission  to  sell  at  retail  does  not 
make  the  goods  subject  to  seizure 
by  the  vendee's  creditors.  Mack  v. 
Story,  57  Conn.  407,  18  Atl.  R.  707. 
And  where  the  vendee  is  authorized 
to  resell  "  in  the  due  course  of  trade," 
this  does  not  justify  him  in  turning 
out  the  goods  in  payment  of  ante- 
cedent indebtedness.  Pratt  v.  Bur- 
hans,  84  Mich.  487,  47  N.  W.  R,  1064, 
22  Am.  St.  R,  703. 


493 


§§  002,  603.] 


LAW    OF    SALE. 


[book  II. 


|  G02.  .  The  same  result  may  ensue  from  the  operation 

of  estoppel  where  the  conditional  vendor  has  previously  per- 
mitted sales  from  the  bulk  under  like  circumstances.1 

§  603.  Statutes  requiring  filing  or  recording  of  contract. 
Unless  so  declared  by  statute,  these  contracts  of  conditional 
sale  or  the  agreements  evidencing  them  are  not  deemed  to  be 
chattel  mortgages  or  instruments  in  the  nature  of  chattel  mort- 
gages, so  as  to  come  within  the  provisions  of  the  familiar  stat- 
utes which  require  chattel  mortgages  to  be  filed  or  recorded.2 
In  some  States,  however,  they  have  been  expressly  made  sub- 
ject to  such  provisions,  and  in  several  States  special  statutes 
have  been  enacted  with  express  reference  to  these  contracts. 
These  statutes  usually  provide  that  unless  the  contract,  or  some 
memorandum  thereof,3  be  in  writing,  signed  by  the  parties,4 
and  filed  or  recorded,5  after  the  manner  of  chattel  mortgages, 


!See  Spooner  v.  Cummings,  151 
Mass.  313,  23  N.  E.  R.  839.  See  also 
Ezzard  v.  Frick,  76  Ga.  512. 

2  See  McComb  v.  Donald,  82  Va. 
903;  Kimball  Co.  v.  Mellon,  80  Wis. 
133. 48  N.  W.  R  1100;  Campbell  Print. 
Press  Co.  v.  Walker,  22  Fla.  412, 1  S. 
R.  59;  Rogers  Locomotive  Works  v. 
Lewis,  4  Dill.  158;  The  Marina,  19  Fed. 
R.  760;  Maxwell  v.  Tufts  (New  Mex.), 
45  Pcic.  R.  979. 

3  As  in  Minnesota,  where,  if  the  con- 
tract was  not  in  writing,  a  memo- 
randum of  it  must  be  recorded. 

4  Must  be  signed  by  both  parties  in 
Wisconsin.  Kimball  Co.  v.  Mellon,  80 
Wis.  133,  48  N.  W.  R.  1100;  Sheldon 
Co.  v.  Mayers,  81  Wis.  627,  51  N.  W. 
R.  1082.  But  a  signing  by  the  factor 
of  the  vendor  and  also  by  the  vendee 
suffices.  Kellogg  v.  Costello,  93  Wis. 
232,  67  N.  W.  R.  24. 

5  In  Connecticut  the  statute  of  1893 
provided  that  such  contracts  should 
be  in  writing,  acknowledged  and  re- 
corded, or  they  would  be  regarded  as 
absolute  except  as  against  the  ven- 


dor or  his  heirs.  See  Lee  Bros.  Furn. 
Co.  v.  Cram,  63  Conn.  433,  28  Atl.  R. 
540. 

In  Florida,  void  after  two  years' 
possession  unless  in  writing  and  re- 
corded. Hudnall  v.  Paine,  39  Fla.  67, 
21  S.  R.  791. 

In  (xeorgia,  except  as  between  the 
parties,  the  contracts  must  be  in  writ- 
ing and  recorded  like  chattel  mort- 
gages. Cohen  v.  Candler,  79  Ga.  427, 
7  S.  E.  R.  160;  Gartrell  v.  Clay,  81 
Ga.  327,  7  S.  E.  R.  161;  Steen  v.  Har- 
ris, 81  Ga.  681,  8  S.  E.  R.  206;  Mann 
v.  Thompson,  86  Ga.  347,  12  S.  E.  R. 
746,  Morton  v.  Frick,  87  Ga.  230,  13 
S.  E.  R.  463;  Penland  v.  Cathey,  110 
Ga.431,  35  S.  E.  R.  659;  Central  Trust 
Co.  v.  Marietta,  etc.  Ry.  Co.,  48  Fed. 
R.  868.  1  C.  C.  A.  140,  2  U.  S.  App.  95. 

Statute  has  no  application  to  stat- 
utory "cash  sales"  o*  cotton  under 
Code,  §  1955a.  Savannah  Cotton  Press 
v.  Maclntyre,  92  Ga.  166,  17  S.  E.  R. 
1023. 

Contract  is  valid  if  recorded  before 
adverse  rights  accrue  (Holland  v.  Ad- 


494 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  603. 


in  some  designated  office,  it  shall  not  be  valid  as  against  sub- 
sequent purchasers  from  the  vendee,  or  often  as  against  his 
creditors. 

While  there  is  general  likeness  in  form  and  similarit}7-  of 
purpose,  these  statutes  yet  vary  so  greatly  that  no  brief  resume 
of  them  can  be  given  in  the  text.  They  are  so  frequently  also 
•  affected  by  local  conditions  and  coloring  that  local  knowledge 
is  necessary.  The  substance  of  them,  however,  with  a  brief  ref- 
erence to  certain  of  the  more  important  cases  which  have  con- 
strued them,  will  be  given  in  the  notes. 

ams,  103  Ga.  610,  30  S.  E.  R.  432),  and 
actual  notice  of  it,  though  not  re- 
corded, makes  it  operative.  Rhode 
Island  Locomotive  Works  v.  Empire 
Lumber  Co.,  91  Ga.  639,  17  S.  E.  R. 
1012.  The  contract  is  good  as  against 
a  subsequent  unrecorded  mortgage 
under  Code,  §  1957.  Cottrell  v.  Mer- 
chants' Bank,  89  Ga.  508,  15  S.  E.  R. 
944. 

But  if  not  entitled  to  record  the 
actual  record  of  the  contract  does 
not  avail  (Derrick  v.  Pierce,  94  Ga. 
466,  19  S.  E.  R.  246),  and  such  a  con- 
tract not  reduced  to  writing,  and  not 
recorded  until  after  a  delivery  of  the 
property  and  until  after  rights  of 
creditors  have  attached,  cannot  avail. 
Harp  v.  Guano  Co.,  99  Ga.  752,  27  S. 
E.  R  181;  Wood  v.  Evans,  98  Ga.  454, 
25  S.  E.  R.  559. 

In  Illinois  the  contract,  though 
not  recorded,  is  good  as  against  the 
buyer's  assignee  for  creditors,  as  he 
takes  the  property  subject  to  all  equi- 
ties, etc.,  which  existed  against  the 
goods  in  the  hands  of  his  assignor. 
Hooven,  etc.  Co.  v.  Burdette,  153  I1L 
672,  39  N.  E.  R.  1107. 

In  Ioiva  such  a  contract  is  invalid 
as  against  creditor  or  purchaser  with- 
out notice  of  the  vendee  in  actual 
possession,  unless  it  be  in  writing, 
executed  by  the  vendor  and  acknowl- 


edged and  recorded  same  as  chattel 
mortgages.  Wright  v.  Barnard,  89 
Iowa,  166,  56  N.  W.  R.  424;  Wilcox  v. 
Williamson  Co..  92  Iowa,  215,  60  N. 
W.  R.  618.  Agreement  to  pay  or  re- 
turn is  within  this  statute.  Wright 
v.  Barnard,  supra. 

Where  the  contract  is  not  executed 
or  recorded  until  two  months  after 
actual  delivery,  and  is  then  the  act 
of  seller  alone,  it  is  not  enough.  Pash 
v.  Weston,  52  Iowa,  675,  3  N.  W.  R. 
713. 

Statute  does  not  apply  where  the 
contract  is  not  one  of  conditional 
sale  (Budlong  v.  Cottrell,  64  Iowa, 
234,  20  N.  W.  R.  106 1,  neither  does  it 
apply  before  the  goods  come  into 
the  actual  possession  of  the  vendee. 
Warner  v.  Johnson,  65  Iowa.  126,  21 
N.  W.  R.  483.  As  to  what  constitutes 
actual  possession,  see  Vorsev.  Loomis, 
86  Iowa,  522,  53  N.  W.  R  314. 

Contract  is  operative,  though  not 
recorded,  as  against  a  prior  chattel 
mortgagee  who  claims  the  goods  as 
after-acquired  goods  under  his  mort- 
gage. Manhattan  Trust  Co.  v.  Sioux 
City  Cable  Co.,  76  Fed.  R.  658;  Myer 
v.  Western  Car  Co.,  102  U.  S.  1. 

Where  the  original  vendee  sold  to 
one  who  had  notice  of  an  unrecorded 
contract,  and  the  latter  sold  to  one 
who  had  no  notice   and  who  paid 


495 


604.] 


LAW  OF  SALE. 


[BOOK  II. 


g  604.  .  As  between  the  parties  themselves,  however,  the 

contract  is  usually  not  affected  by  the  lack  of  such  recording 


value,  it  was  held  that  the  last  pur- 
chaser was  protected.  National  Cash 
Reg.  Co.  v.  Maloney,  95  Iowa,  573,  64 
N.  W.  R.  618. 

It  is  not  necessary  that  the  con- 
tract shall  be  executed  by  the  buyer. 
National  Cash  'Reg.  Co.  v.  Schwab, 
—  Iowa,  — ,  82  N.  W.  R  1011. 

In  Kansas  such  a  contract  is  void 
as  against  purchasers  without  notice 
and  creditors,  unless  in  writing  and 
recorded  like  chattel  mortgages. 
Laws  1889.  ch.  255,  p.  1;  Moline  Plow 
Co.  v.  Witham,  52  Kan.  185,  34  Pac. 
R.751. 

Actual  notice  is  equivalent  to  rec- 
ord. First  Nat.  Bank  v.  Tufts,  53 
Kan.  710,  37  Pac.  R.  127. 

Statute  does  not  apply  to  goods 
delivered  for  sale  on  commission 
merely.  Renoe  v.  "Western  Milling 
Co.,  53  Kan.  255,  36  Pac.  R  329. 

In  Kentucky  these  contracts  are 
treated  as  mortgages  and  must  be 
recorded  as  such.  "Welch  v.  National 
Cash  Reg.  Co.  (1898),  —  Ky.  — ,  44 
S.  "W.  R  124   - 

Iu  Maine,  "  no  agreement  that  per- 
sonal property  bargained  and  deliv- 
ered to  another,  for  which  a  note  is 
given,  shall  remain  the  property  of 
the  payee  until  the  note  is  paid  is 
valid,  unless  it  is  made  and  signed  as 
part  of  the  note;  and  no  such  agree- 
ment, although  so  made  and  signed, 
in  a  note  for  more  than  thirty  dol- 
lars is.valid,  except  as  between  the 
original  parties  to  said  agreement, 
unless  it  is  recorded  like  mortgages 
of  personal  property."  Rev.  Stat.  1883, 
cli.  111.  g  5;  Hill  v.  Nutter,  82  Me.  199, 
19  Atl.  R.  170;  Holt  v.  Knowlton,  86 
Me.  156,  29  Atl.  R  1113;  Hopkins  v. 
Maxwell,  91  Me.  247,  39  AtL  R.  573. 


Other  writing  containing  a  prom- 
ise to  pay  may  be  a  "  note  "  within 
the  meaning  of  this  statute.  Nichols 
v.  Ruggles,  76  Me.  25;  Cunningham 
v.  Trevitt,  82  Me.  145,  19  Atl.  R.  110. 

Statute  does  not  apply  where  there 
is  no  agreement  to  buy  and  no  note 
given.  Thomas  v.  Parsons,  87  Me. 
203,  32  Atl.  R.  876.  See  also  Morris 
v.  Lynde,  73  Ma  88. 

In  Minnesota  the  contract  is  void 
as  against  the  creditors  of  the  vendee 
and  subsequent  purchasers  and  mort- 
gagees in  good  faith,  unless  the  con- 
tract, or  a  memorandum  thereof,  if 
it  were  oral,  be  filed. 

Statute  applies  to  an  exchange  of 
property  where  one  party  retains 
title  to  the  thing  parted  with  by  him 
until  certain  conditions  are  satisfied. 
Kinney  v.  Cay,  39  Minn.  210,  39  N. 
W.  R.  140. 

Statute  does  not  apply  to  a  mere 
consignment.  Cortland  Wagon  Co.  v. 
Sharvy,  52  Minn.  216,  53  N.  W.  R.  1147. 

Contract  is  not  void  as  to  creditors 
for  delay  in  filing  unless  in  that  in- 
terval they  have  attached  the  prop- 
erty (Clark  v.  Richards  Lumber  Co., 
68  Minn.  282.  71  N.  W.  R.  389);  but 
creditors  who  became  such  while 
contract  kept  off  the  files  are  pro- 
tected Id.  And  an  assignee  for  cred- 
itors may  enforce  their  rights. 
Thomas  Mfg.  Co.  v.  Drew,  69  Minn. 
69,  71  N.  W.  R  921. 

In  Mississippi  such  a  contract  is 
void  as  to  creditors  or  purchasers  of 
one  remaining  in  possession  for  three 
years  unless  acknowledged  and  re- 
corded. Code,  §  4227;  Paine  v.  Hall 
Safe  Co.,  64  Miss.  175;  Jennings  v. 
Wilson,  71  Miss.  42.  14  S.  R.  259. 

Section  1300  does  not  apply  except 


496 


OH.  III.]  CONDITIONAL    SALE   OF   SPECIFIC    CHATTELS. 


[§  604. 


or  filing;1  and,  in  general,  it  is  likewise  valid,  though  not  re- 
corded, as  against  mere  creditors2  or  purchasers  having  other- 
wise actual  knowledge  of  it.3 


where  the  article  is  in  possession  of 
a  trader  with  consent  of  owner. 
Adams  v.  Berg,  67  Miss.  234,  7  S.  R. 
225. 

In  Missouri  such  a  contract,  un- 
less in  writing,  acknowledged  by  the 
vendee  and  recorded  like  a  chattel 
mortgage,  is  void  against  creditors 
or  subsequent  purchasers  in  good 
faith.    R  S.  1879,  §  2505. 

This  means  prior  as  well  as  subse- 
quent creditors.  Collins  v.  Wilhoit, 
35  Mo.  App.  585,  108  Mo.  451,  18  S.  W. 
R  839. 

The  statute  applies  to  instalment 
contracts  (Gentry  v.  Templeton,  47 
Mo.  App.  55),  and  to  sale  by  one  part- 
ner to  another.  Redenbaugh  v.  Kel- 
ton,  130  Mo.  558,  32  S.  W.  R  67. 

Bona  fide  purchasers  protected 
where  contract  was  not  recorded. 
Eidson  v.  Hedger,  38  Mo.  App.  52; 
Hauck  Cloth  Co.  v.  Brothers,  61  Mo. 
App.  3S1. 

In  Nebraska  such  a  contract,  un- 
less in  writing  and  recorded,  is  not 
valid  as  against  purchasers  or  judg- 
ment creditors  of  a  vendee  in  posses- 
sion without  notica  Com.  Stat.,  eh. 
32,  §  26;  Osborne  Co.  v.  Piano  Mfg. 
Co.,  51  Neb.  502.  70  X.  W.  R.  1124:  Nor- 
ton v.  Pilger,  30  Xeb.  860,  47  X.  W. 


R  471;  Peterson  v.  Tufts,  34  Xeb.  8, 
51  N.  W.  R  297;  Regier  v.  Craver,  54 
Xeb.  507,  74  X.  W.  R  830. 

A  mortgagee  of  the  conditional 
vendee  is  not  a  purchaser  within 
this  statute.  McCormick  Harvesting 
Co.  v.  Callen,  48  Xeb.  849,  67  X.  W. 
R  863;  Campbell  Printing  Press  Co. 
v.  Dyer,  46  Xeb.  830.  65  X.  W.  R.904. 

In  New  Hampshire  such  a  con- 
tract must  be  recorded  to  be  valid 
against  attaching  creditors  or  subse- 
quent purchasers  without  notice. 
Laws  18S5,  ch.  30;  Gerrish  v.  Clark. 
64  X.  H.  492.  13  Atl.  R  570.  See  also 
Sinclair  v.  Wheeler,  69  X.  H.  538,  45 
Atl.  R  1085. 

Actual  notice  is  enough  though 
not  recorded.  Batchelder  v.  San- 
born, 66  X.  H.  192.  22  Atl.  R.  535. 

In  New  Mexico  such  contracts  are 
not  within  the  chattel  mortgage  re- 
cording acts.  Maxwell  v.  Tufts 
(X.  M.),  45  Pac.  R  979. 

In  New  Jersey,  unless  recorded, 
such  contracts  are  void  as  against 
subsequent  purchasers  and  mortga- 
gees in  good  faith.  Stats.  1896.  p.  891 ; 
Knowles  Loom  Works  v.  Vacher,  57 
X.  J.  L,  490,  31  Atl.  R  306.  But, 
though  not  so  recorded,  the  contract 
is    operative    as    against    creditors. 


1  Compare  provisions  of  statutes  in 
preceding  note.  See  also  Kornegay 
v.  Kornegay,  109  X.  C.  188, 13  S.  E.  R 
770;  Brewing  Ass'n  v.  Manufacturing 
Co.,  81  Tex.  99;  Hooven,  etc.  Co.  v. 
Burdette,  153  111.  672.  39  X.  E.  R  1107. 

2  Compare  provisions  of  statutes  in 
the  second  preceding  note. 

3  See  Morton  v.  Frick  Co.,  87  Ga. 
230;  Xorton  v.  Pilger.  30  Neb.  860,  47 


X.  W.  R.  471:  McCormick  v.  Steven- 
son, 13  Xeb.  70.  12  X.  W.  R.  828;  Kel- 
sey  v.  Kendall  4s  Vt.  24:  Perkins  v. 
Be>t.  94  Wis.  168,  68  X  W.  R.  762; 
Singer  Mfg.  Co.  v.  Xash.  70  Vt.  434, 
41  Atl.  R  429;  Batchelder  v.  Sanborn, 
66  X  H.  192,  22  Atl.  R.  535:  First  Xat. 
Bank  v.  Tufts,  53  Kan.  710,  37  Pac,  R, 
127. 


32 


497 


605.] 


LAW  OF  SALE. 


[BOOK  II. 


§605.  Defar.lt  by  purchaser —  What  constitutes.— The 

most  common  purpose  which  the  vendor  has  in  view  in  retain- 
ing title  is  usually,  as  has  been  seen,  to  secure  thereby  the  pay- 
ment of  the  purchase  price.  Incident  to  this,  however,  or  coupled 


Wooley  v.  Wagon  Co.,  59  N.  J.  L.  278, 
35  Atl.  R.  789. 

In  New  York  such  contracts  are 
void  as  to  subsequent  purchasers  and 
mortgagees  in  good  faith  unless  filed. 
Laws  1884,  ch.  315. 

Creditors  are  not  protected  by  this 
statute  (Frank  v.  Batten,  49  Hun, 
91);  nor  is  a  mortgagee  for  an  ante- 
cedent debt  (Duffus  v.  Furnace  Co., 
15  Misc.  169);  nor  a  pledgee.  Kauff- 
man  v.  Klang.  16  Misc.  379. 

In  North  Carolina  the  contract 
must  be  in  writing  and  recorded  like 
a  chattel  mortgage. 

As  between  the  parties  the  con- 
tract is  not  affected  by  the  statute. 
Kornegay  v.  Kornegay,  109  N.  C.  188, 
13  S.  E.  R.  770.  See  also  Henkel  v. 
Greene,  125  N.  C.  489,  34  S.  E.  R.  554. 
The  statute  does  not  operate  re- 
trospectively. Harrell  v.  Godwin, 
102  N.  C.  330,  8  S.  E.  R.  925;  Perry  v. 
Young,  105  N.  C.  463,  11  S.  E.  R.  511. 
Contract  once  properly  recorded 
need  not  be  rerecorded  upon  re- 
moval of  property  to  another  county. 
Barrington  v.  Skinner,  117  N.  C.  47, 
23  S.  E.  R.  90. 

In  Ohio  the  condition  is  void  as  to 
subsequent  purchasers,  mortgagees 
in  good  faith  and  creditors,  unless  it 
is  in  writing,  and  verified  and  filed 
as  chattel  mortgages  are  required  to 
be.  Act  of  May  4,  1885,  82  Ohio  L. 
238.  The  statute  is  constitutional. 
Weil  v.  State,  46  Ohio  St.  450.  For 
construction,  see  Speyer  v.  Baker,  59 
Ohio  St.  11,  51  N.  E.  R.  442;  Metro- 
politan Trust  Co.  v.  Columbus,  S.  R. 
Co.,  93  Fed.  R.  702, 


In  South  Carolina  such  contracts 
are  void  as  to  subsequent  creditors 
or  purchasers  for  valuable  considera- 
tion without  notice  unless  recorded. 
Herring  v.  Cannon,  21  S.  C.  212,  53 
Am.  R.  661;  Southern  Music  House 
v.  Dusenbury,  27  S.  C.  464,  4  S.  E. 
R.  60. 

In  Texas  such  contracts  are  void 
as  to  creditors  and  bona  fide  pur- 
chasers unless  registered  like  chattel 
mortgages.  Creditor  here  means  a 
lien  creditor.  Pari  in  v.  Harrell,  8 
Tex.  Civ.  App.  368,  27  S.  W.  R.  1084. 
Valid  as  against  assignee  for  cred- 
itors.   Mansur,  etc.  Co.  v.  Beeman, 

etc.  Co.,  —  Tex.  Civ.  App. ,  45  S.W. 

R.  729.  See  also  Bowen  v.  Lansing 
Wagon  Works,  91  Tex.  385,  43  S.  W. 
R.  872;  Hall,  etc.  Co.  v.  Brown,  82 
Tex.  469.  17  S.  W.  R.  715;  San  An- 
tonio Brewing  Ass'n  v.  Arctic  Mfg. 
Co.,  81  Tex.  99, 16  S.  W.  R.  797;  Hoyt 
v.  Weiss,  10  Tex.  Civ.  App.  462,  32  S. 
W.  R.  86. 

In  Vermont  contract  must  be  re- 
corded within  thirty  days  to  be  valid 
against  attaching  creditors  or  subse- 
quent purchasers  without  notice. 
Rev.  L.  1880,  §  1992;  Desany  v.  Thorp, 
70  Vt.  31,  39  Atl.  R.  309;  Whitcomb 
v.  Woodworth,  54  Vt.  544;  Church  v. 
McLeod,  58  Vt.  541. 

Attaching  creditors,  to  be  pro- 
tected, must  likewise  be  without  no- 
tice. McPhail  v.  Gerry,  55  Vt.  174; 
Singer  Mfg.  Co.  v.  Nash,  70  Vt,  434, 
41  Atl.  R.  429. 

Lien  must  be  foreclosed  by  public 
sale  by  a  public  officer,  and  vendee 
has  the  right  to  redeem  within  a 
498 


€11.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  ["§   ,'(l~)- 


with  it,  may  be  provisions  that  the  property  shall  not  be  re- 
moved from  a  specified  place,1  or  shall  be  used  only  for  a  cer- 
tain purpose,2  or  shall  be  kept  insured,  or  be  kept  up  to  a  certain 
value,  as  in  the  case  of  a  stock  of  goods,3  or  be  preserved  in 
good  order,  and  the  like. 

In  the  formal  contracts  now  so  common,  these  matters  will 
be  found  specifically  provided  for,  with  penalties  attached  for 
their  breach,  the  usual  penalty  being  the  resumption  of  posses- 
sion by  the  seller,  and  perhaps  the  total  termination  of  the  con- 
tract. 

The  default,  however,  which  is  most  frequently  presented  is 


time  prescribed.  Act  1884,  No.  93; 
Roberts  v.  Hunt,  61  Vt.  612,  17  Atl. 
E.  1006. 

In  Virginia  contract  must  be  re- 
corded or  it  will  be  void  as  to  cred- 
itors and  bona  fide  purchasers.  Code, 
§  2462;  Hash  v.  Lore,  88  Va.  716,  14 
S.  E.  R.  365;  Callahan  v.  Young,  90 
Va.  574,  19  S.  E.  R.  163;  Arbuckle  v. 
Gates,  95  Va.  802,  30  S.  E.  R.  496. 

In  Washington  the  sale  is  absolute 
as  to  all  creditors  or  purchasers  in 
good  faith  unless  filed  within  ten 
days.  Bal.  Code,  §  4585.  As  to  what 
is  a  conditional  sale  hereunder,  see 
Eisenberg  v.  Nichols,  22  Wash.  70, 
60  Pac.  R.  124. 

Purchaser  in  consideration  of  a 
pre-existing  debt  is  protected  by  this 
statute.  Johnston  v.  Wood,  19  Wash. 
•441,  53  Pac.  R.  707. 

In  West  Virginia,  unless  recorded, 
the  contract  is  void  as  to  creditors 
and  purchasers  without  notice.  Bald- 
win v.  Van  Wagner,  33  W.  Va.  293, 
10  S.  E.  R  716. 

In  Wisconsin  contract  must  be 
subscribed  by  both  parties,  and  filed 
in  office  of  town  clerk,  in  order  to  be 
valid  against  others  than  the  parties 
and  those  having  notice.  Rawson 
Mfg.  Co.  v.  Richards,  69  Wis.  643,  35 


N.  W.  R.  40;  Kellogg  v.  Costello,  93 
Wis.  232,  67  N.  W.  R.  24. 

As  to  signing  by  both  parties,  see 
Kimball  Co.  v.  Mellon,  80  Wis.  133, 
48  N.  W.  R.  1100;  Sheldon  Co.  v. 
Mayers,  81  Wis.  627,  51  N.  W.  R.  1082; 
Kellogg  v.  Costello,  supra. 

Assignee  for  creditors  has  the 
rights  of  such  creditors.  Sheldon 
Co.  v.  Mayers,  supra.  Notice  by  re- 
citals in  other  instruments  through 
which  the  party  claims  is  sufficient. 
Perkins  v.  Best,  94  Wis.  168,  68  N.  W. 
R.  762. 

Contract  for  sale  of  standing  tim- 
ber is  not  within  this  statute.  Bent 
v.  Hoxie,  90  Wis.  625,  64  N.  W.  R.  426; 
Lillie  v.  Dunbar,  62  Wis.  198. 

Statute  requiring  notice  has  no  ap- 
plication where  the  vendee  surrepti- 
tiously obtains  possession  before  the 
contract  is  completed.  Owen  v.  Long, 
97  Wis.  78,  72  N.  W.  R  364. 

Statute  does  not  protect  a  mere  tres- 
passer.    Kimball  v.  Post,  44  Wis.  471. 

i  Johnston  v.  Whittemore,  27  Mich. 
463;  Whitney  v.  McConnell,  29  Mich. 
12;  Smith  v.  Lozo,  42  Mich.  6. 

2  Faisst  v.  Waldo,  57  Ark.  270,  21  S. 
W.  R.  436. 

3  Ryan  v.  Wayson,  108  Mich.  519, 66 
N.  W.  R  370. 


499 


§  606.] 


LAW    OF    SALE.  [BOOK    II. 


that  of  the  failure  of  the  vendee  to  pay  for  the  goods  at  the 
time  specified,  or,  if  no  time  was  agreed  upon,  then  within  a 
reasonable  time;1  and,  whatever  the  condition,  there  will  be  a 
default  whenever  the  buyer,  without  the  consent  of  the  seller, 
has  failed  or  omitted  to  pay  the  price  or  do  the  other  act  at 
the  time  or  in  the  manner  agreed  upon.2 

§606.  Effect  of  vendee's  default.— It  is  customary  and 
competent  for  the  parties  to  stipulate,  with  more  or  less  of  par- 
ticularity, what  shall  be  the  effect  of  the  default  by  the  vendee, 
and  what  shall  be  the  respective  rights  and  duties  of  the  par- 
ties thereafter.  The  mere  omission,  however,  of  the  vendee 
to  pay  the  price,  or  perform  the  other  acts  agreed  upon,  at 
maturity,  while  it  may  terminate  his  right  to  possession3  does 
not,  unless  by  force  of  an  express  provision,  ipso  facto  operate 
as  an  absolute  forfeiture  of  all  his  rights,  in  the  absence  of  a 
demand  for  such  payment  or  performance,  or  a  request  for  the 
restoration  of  the  goods,  on  the  part  of  the  vendor; 4  and  upon 
such  a  demand,  even  after  maturity,  the  vendee  may,  it  is  held, 
still  pay  the  amount  or  perform  the  other  stipulated  acts  and 
save  the  goods.9 

i  Mathews  v.  McElroy,  79  Mo.  202;    this  reason  or  ask  instructions,  or  no- 
Wiggins  v.  Snow,  $9  Mich.  476,  50  N.     tify  it  of  his  readiness  to  deliver. 
W.  R.  991 ;  Ryan  v.  Wayson,  108  Mich.    Held,  that  Kelly  was  in  default. 
-519,  66  N.  W.  R.  370.  3  As  to  necessity  of  demand  hefore 

2  In  Cincinnati  Safe  Co.  v.  Kelly,  54  retaking  the  goods,  see  post,  §  628. 
Ark.  476, 16  S.  W.  R.  263,  plaintiff  sold  4  Sunny  South  Lumber  Co.  v.  Nei- 
Kelly  a  new  safe  for  a  sum  of  money  meyer  Lumber  Co.,  63  Ark.  268,38 
and  his  old  safe,  which  Kelly  was  to  S.  W.  R.  902;  Ames  Iron  Works  v. 
deliver  at  the  depot.  Kelly  paid  the  Rea,  56  Ark.  450,  19  S.  W.  R.  1063; 
money,  but,  though  "  urged  "  to  do  so,  Nattin  v.  Riley,  54  Ark.  30,  14  S.  W. 
did  not  deliver  the  old  safe  at  the  R.  1100;  Deyoe  v.  Jamison,  33  Mich. 
depot,  though  it  appeared  afterward  94;  Taylor  v.  Finley,  48  Vt.  78; 
that  he  had  requested  permission  of  Hutchings  v.  Munger,  41  N.  Y.  155. 
the  station  agent  to  place  the  safe  5  Taylor  v.  Finley,  Hutchins  v. 
on  the  depot  platform,  which  was  re-  Munger,  Nattin  v.  Riley,  and  other 
fused  unless  it  was  placed  there  for  cases  in  preceding  note;  O'Rourke 
shipment.  Kelly  could  give  no  ship-  v.  Hadcock,  114  N.  Y.  541, 22  N.  E.  R. 
ping  instructions  and  therefore  did  33;  Vaughn  v.  McFadyen,  110  Mich, 
not  deliver  the  safe  at  the  depot.  He  234,  68  N.  W.  R.  135. 
did  not,  however,  notify  plaintiff  of        If  money  is  not  paid  at  the  time 

500 


GH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC    CHATTELS.       [§§  607-G10. 

§  607.  .  The  default  of  the  vendee  does,  nevertheless, 

work  a  radical  change  in  the  relations  of  the  parties.  It  puts 
the  vendee  in  the  position  of  one  who,  at  least,  has  failed  to 
improve  an  opportunity,—  as  where  he  was  not  absolutely 
bound  to  buy, —  or  who  has  violated  his  undertaking  —  as  in 
the  ordinary  case  where  he  has  absolutely  agreed  to  buy  and 
pay  for  the  chattel;  and  it  gives  to  the  vendor,  unless  he 
waives  it,  the  right  to  avail  himself  of  the  remedies  which  the 
contract  or  the  rules  of  law  prescribe  or  offer. 

§  608. .  Moreover,  after  the  seller  has  exercised  his  right 

to  terminate  the  buyer's  interest,  no  new  transfers  of  the  buy- 
er's former  title  can  be  made  in  such  wise  as  to  force  new  par- 
ties or  new  obligations  upon  the  seller.1 

§  609.  Waiver  of  default  by  seller. —  The  law  has  no  inter- 
ests of  its  own  to  subserve  in  insisting  upon  forfeitures  or  the 
other  results  of  default.  The  remedies  it  gives  are  for  the 
benefit  of  the  vendor,  and  he  may  waive  them  if  he  will.  He 
may  do  this,  moreover,  either  expressly  or  by  implication,  and 
as  the  results  of  default  more  often  work  hardship  to  the  buyer 
than  to  the  seller,  the  law  looks  with  complacence  at  least 
upon  those  acts  of  the  vendor  which  may  fairly  be  construed 
as  indicative  of  his  intention  not  to  insist  upon  a  forfeiture  of 
the  buyer's  rights.  If,  therefore,  the  seller,  notwithstanding 
the  default,  does  not  avail  himself  of  his  appropriate  remedy, 
but  so  acts  as  to  reasonably  warrant  the  inference  that  he  re- 
gards the  buyer's  rights  as  still  subsisting,  he  will  be  deemed  to 
have  waived  the  default,  and  he  will  not  be  at  liberty  to  de- 
clare a  forfeiture  until  he  has  in  some  way  put  the  buyer, 
whom  he  has  thus  misled,  in  the  attitude  of  a  fresh  default. 

§  610.  .  Thus,  if,  after  default,  the  seller  permits  the 

buyer  to  retain  possession  of  the  goods  and  accepts  part  pay- 
specified,  and  the  seller  resumes  pos-    not  kept  good.    Summerson  v.  Hicks, 
session,  the  buyer  cannot  maintain     134  Pa.  St.  566,  19  Atl.  R.  808. 
replevin  by  virtue  of  a  subsequent        l  Lippincott  v.  Rich,  19  Utah,  140, 
tender  of  the  price,  if  the  tender  is    56  Pac.  R.  806. 

501 


§§  611-61 3.]  LAW   OF   SALE.  [BOOK    II. 

inents  on  the  price;1  or  if,  where  the  price  is  payable  in  instal- 
ments, the  vendor  permits  the  vendee  to  continue  in  possession 
and  extends  the  time  of  payment  of  an  instalment  due;2  or 
permits  the  vendee  to  make  payments  and  retain  possession 
after  the  whole  amount  is  due,3  — his  conduct  will  be  deemed 
to  be  a  waiver  of  the  default  in  question,  and  he  can  only  in- 
sist upon  a  default  and  regain  possession  by  making  a  fresh 
demand  of  payment  or  performance  which  is  not  complied 
with.4 

§611.  .  It  is  not,  however,  to  be  understood  that  the 

seller  is,  at  his  peril,  bound  to  act  instantly,  or  to  proceed  with 
all  possible  dispatch  or  harshness:  the  question  is  whether  his 
conduct  can  reasonably  be  viewed  as  indicating  that  he  does 
not  expect  to  insist  upon  a  forfeiture,  and  thereby  leading  the 
vendee  into  a  position  of  false  security.5 

§  612.  .  Whether  the  vendor  has  so  conducted  himself 

as  to  establish  a  waiver  is  ordinarily  a  question  of  fact  for  the 
jury,  in  view  of  all  the  circumstances  of  the  case.6 

§613.  Remedies  of  seller  upon  default.— The  common 
and  characteristic  remedy  of  the  seller,  upon  default,  is  to  de- 
clare the  buyer's  rights  under  the  contract  forfeited  and  re- 
cover his  goods.  There  may,  however,  be  cases  in  which  the 
right  to  the  possession  of  the  property  is  so  far  at  the  will  of 
the  conditional  vendor,  or  is  so  far  dependent  upon  other  con- 
ditions than  that  of  payment,  that  the  vendor  may  resume 

i  Hutchings  v.  Hunger,  41  N.  Y.  155.  Quinn  v.  Parke  &  Lacy  Mach.  Co.,  5 

2  Cole  v.  Hines,  81  Md.  476,  32  Atl.  Wash.  276.  31  Pac.  R.  866. 

R.  196,  32  L.  R.  A.  455.  5  Delay  of  vendor  is  construed  with 

30'Rourke  v.  Haclcock,  114  N.  Y.  much  strictness  in  Delaware.    Math- 

541,  22  N.  E.  R.  33;  Mosby  v.  Goff,  21  ews  v.  Smith,  8  Houst,  22,  31  Atl.  R. 

R  1. 494,  44  Atl.  R.  930 ;  People's  Furn.  879. 

&  Carp.  Co.  v.  Crosby,  57  Neb.  282,  6  Goslen  v.  Campbell,  88  Me.  450, 

77  N.  W.  R.  658,  73  Am.  St.  R.  504;  34  Atl.  R.  265;  Quimby  v.  Lowell,  89 

Taylor  v.  Finley,  48  Vt.  78;  Fairbank  Me.    547,   36   Atl.    R.   902;   Wing  v. 

v.  Phelps,  22  Pick.  (Mass.)  535.  Thompson,  78  Wis.  256,  47  N.  W.  R. 

4  Hutchings    v.    Munger,    Cole    v.  606;  Warnken  v.  Langdon  Co.,  8  N. 

Hines,  O'Rourke  v.  Hadcock,  supra;  Dak.  243,  77  N.  W.  R.  1000. 

502 


CH.  III.]       CONDITIONAL    SALE  OF  SPECIFIC    CHATTELS.       [§§  614,  615. 

possession  even  before  default  in  payment.  There  are  also 
cases,  as  will  be  seen,  in  which  the  vendor  may,  by  virtue  of 
the  peculiar  provisions  of  the  contract,  resume  possession  of 
the  goods  and  at  the  same  time  leave  the  general  obligations 
of  the  contract  unimpaired.  When,  however,  by  the  express 
or  implied  conditions  of  the  contract,  the  vendee  is  entitled  to 
possession  until  default,  his  possession  cannot,  of  course,  be 
disturbed  until  he  has  made  default,1  though  upon  such  default, 
unless  waived,  the  seller  may  resume  possession.2 

§  614.  .  Eecovery  of  possession,  however,  is  not  neces- 
sarily the  only  remedy  of  the  seller.  It  may  be  his  only  rem- 
edy, as  where,  in  the  not  uncommon  case,  the  other  party  has 
not  agreed  to  buy,  but  has  merely  the  option  to  do  so;3  but  in 
the  ordinary  case  the  buyer  does  agree  to  buy  and  pay  for  the 
chattel,  in  terms  which  are  more  or  less  absolute  and  uncondi- 
tional; and  where  he  has  done  so,  the  seller  may  have  personal 
remedies  in  lieu  of,  or  in  addition  to,  his  remedy  against  the 
goods. 

§  615.  What  choice  of  remedies  is  offered. —  Where,  there- 
fore, the  vendee  is,  expressly  or  impliedly,  entitled  to  the  pos- 
session until  default,  the  vendor,  who  would  take  advantage  of 
a  default,  may  often  have  a  choice  of  remedies.  Under  vary- 
ing circumstances,  the  following  list  is  open  to  him: 

1.  He  may  treat  the  contract  as  rescinded,  upon  the  default 

iNewhall  v.  Kingsbury,  131  Mass.  agree  to  buy  or  pay.    If  he  did  pay, 

445;  Hurd  v.  Fleming,  34  Vt.   169;  he  obtained  the  goods;  if  he  did  not 

Lambert  v.  McCloud,  63  Cal.  162.  pay,  the  vendor  might  recover  them, 

2  Harmon  v.  Goetter,  87  Ala.  325,  6  and  this  was  held  to  be  the  extent  of 
S.  R.  93;  Richardson  Drug  Co.  v.  his  loss  or  liability.  So  in  Rodgers 
Teasdall,  52  Neb.  698,  72  N.  W.  R.  v.  Bachman,  109  Cal.  552,  42  Pac.  R 
1028;  Wiggins  v.  Snow,  89  Mich.  476,  448. 

50  N.  W.  R.  991;   Ryan  v.  Wayson,  When  the  contract  is  in  form  a 

108  Mich.  519,  66  N.  W.  R.  370.  lease,  and  the  lessee  gives  his  notes 

3  Thus,  in  Loomis  v.  Bragg,  50  for  instalments  of  rent  to  fall  due, 
Conn.  228,  47  Am.  R.  638;  Hine  v.  the  lessor  who  reclaims  the  goods 
Roberts,  48  Conn.  267,  40  Am.  R.  170  cannot  recover  on  the  notes  falling 
(as  see  Beach's  Appeal,  58  Conn.  464,  due  thereafter.  Campbell  Print. 
20  Atl.  R.  475),  the  vendee  did  not  Press  Co.  v.  Henkle,  19  D.  C.  95. 

503 


§§  616-618.]  LAW    OF    SALE.  [BOOK   IT. 

of  the  buyer,  and  recover  his  goods.  If  he  does  this,  he  has  no 
other  remedy. 

2.  He  may  treat  the  contract  as  in  force  but  broken  by  the 
vendee ;  he  may  retake  and  keep  the  goods  as  his  own,  and,  if  the 
contract  imposed  upon  the  buyer  an  absolute  obligation  to  buy, 
he  may  recover  of  the  buyer  damages  for  the  breach  of  his  agree- 
ment to  buy  and  pay  for  the  goods.  The  measure  of  damages 
will  ordinarily  be  the  difference  between  the  contract  price  and 
the  market  value  of  the  goods  at  the  time  and  place  of  default. 

3.  He  may,  if  the  contract  contains  an  unconditional  agree- 
ment on  the  part  of  the  vendee  to  pay,  waive  a  return  of  the 
goods,  treat  the  contract  as  executed  on  his  own  part,  and  re- 
cover from  the  vendee  the  agreed  price  of  the  goods. 

4.  He  may,  in  some  cases,  if  the  contract  permits  it,  without 
rescinding  or  terminating  the  contract,  resume  possession  of 
the  goods,  hold  them  subject  to  the  contract,  and  then  enforce 
performance  by  the  vendee,  who,  upon  such  performance,  will 
be  entitled  to  restoration  of  the  goods. 

§  616.  Election  of  remedy. —  The  remedies  of  the  vendor 
are  usually  regarded  as  alternative  and  not  cumulative.  He 
has  his  choice,  but,  having  elected  to  pursue  one  remedy,  he 
cannot,  it  is  said,  afterwards  abandon  that  and  try  another. 

§617.  Rescission. —  With  respect  of  the  first  remedy 

suggested, —  that  of  rescission, —  it  is  clear  that  such  a  course 
defeats  all  further  remedies  under  the  contract.  The  vendor 
is  not  required,  unless  by  reason  of  some  express  term  of  the 
contract,  to  go  so  far  as  to  rescind  the  contract;  he  may  ordi- 
narily deem  it  simply  broken  by  the  vendee,1  and  may  sue  for 
damages  for  its  breach.  If,  however,  he  does  treat  it  as  re- 
scinded, he.is  neither  entitled  to  the  price  nor  to  damages;  for 
the  right  to  either  flows  from  the  contract,  and  the  rescission 
wipes  out  the  contract  from  the  beginning. 

§  618.  Recaption. —  If  the  vendor  has  not  rescinded,  he 

has  usually  his  choice  of  the  second  or  the  third  remedies  open 

i  See  Hayes  v.  Nashville  (1897),  47  U.  S.  App.  713,  26  C.  C.  A.  59, 80  Fed.  R.  641. 

504 


Cff.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  619. 

to  him.  He  may  treat  the  contract  as  broken  by  the  vendee 
and  may  recover  his  property.  If  he  does  regain  his  property 
and  keeps  it  as  his  own,  he  has  lost  simply  the  benefit  of  the 
bargain, —  the  profit  he  would  have  made, —  and  the  dimin- 
ished value  of  the  goods  from  use  or  deterioration.  This  loss 
he  may  recover  in  an  action,  not  for  the  price,  but  for  damages 
for  the  breach  of  the  contract. 

§  619. Personal  action. —  If  the  vendor  prefers  neither 

to  rescind  nor  to  retake  the  property,  but  to  rely  on  the  personal 
responsibility  of  the  vendee,  he  may  do  that,  and  may  bring 
an  action  to  recover  the  price  as  such,  whenever  there  was  an 
express  or  implied  agreement  by  the  vendee  to  buy  and  pay 
for  the  goods.1  But  the  price  is  not  ordinarily  payable  unless 
the  title  has  passed;  hence  if  the  vendor  chooses  this  remedy 
he  clearly  indicates  his  election  to  treat  the  sale  as  perfected, 
and  thereby  bars  either  a  subsequent  rescission  of  the  contract 
or  a  reclamation  of  the  property  — unless  the  contract  expressly 
permits  him  this  double  remedy, —  even  though  he  may  not  suc- 
ceed in  his  endeavor  to  collect  the  price.2    Having  thus  elected 

1  Bailey  v.  Hervey,  135  Mass.  172;  Hervey,  135  Mass.  172,  it  appeared 
McRea  v.  Merrifield,  48  Ark.  160,  2  that  plaintiff  Bailey  entered  into  a 
S.  W.  R.  780;  Beach's  Appeal,  58  Conn,  contract  with  defendants  Hervey  & 
464, 20  Atl.  R.  475;  Crompton  v.  Beach,  Co.,  which  recited  that  plaintiff  had 
62  Conn.  25, 25  Atl.  R.  446, 18  L.  R.  A.  "  hired  and  received  "  from  them 
187;  Seanor  v.  McLaughlin,  165  Pa.  St.  certain  goods  for  which  he  agreed  to 
150,  30  Atl.  R.  717;  Holt  Mfg.  Co.  v.  pay  them  certain  sums  of  money  as 
Ewing,  109  Cal.  353,  42  Pac.  R.  435;  "rent"  at  stated  times,  and  -the 
Richards  v.  The  Schreiher  Co.,  98  balance  "  at  a  certain  rate  per  month 
Iowa,  422,  67  N.  W.  R.  569;  Johnson-  "until  paid;"  that  no  title  to  the 
Brinkman  Co.  v.  Railway  Co.,  126  goods  should  vest  in  him  until  he 
Mo.  344,  28  S.  W.  R.  870,  47  Am.  St.  R.  had  performed  all  the  conditions  of 
675.  the  agreement,  upon  performance  of 

A  formal  act  of  delivery  or  tender  which  the  title  should  vest.  Bailey 
of  the  goods,  or  specific  waiver  of  further  agreed  in  said  contract  "that 
the  right  to  reclaim  them,  is  not  a  if  any  default  be  made  in  the  pay- 
condition  precedent  to  an  action  for  ment  of  the  rent  or  any  part  thereof 
the  price.  Smith  v.  Barber,  153  Ind.  as  above  specified,  or  if  any  default 
322,  53  N.  E.  R.  1014  be  made  in  the  performance  of  any 

2  See  post,  as  to  waiver  of  right  to  of  the  agreements  herein  contained, 
retake  property,  §  624.     In  Bailey  v.  my  right  to  hold  or  retain  said  prop- 

505 


§  619.] 


LAW    OF    SALE. 


|  BOOK    IT. 


to  affirm  the  sale  and  pass  the  title,  the  vendor  loses  all  claim 
upon  the  goods,  unless  the  contract  specially  provides  other- 
wise, and  no  lien  will  be  afterwards  implied  to  secure  the  pay- 
ment of  the  price. 


erty  or  any  part  hereof  shall  wholly 
and  determine  "  (62  Conn.  39). 
Bailey  being  subsequently  in  default, 
the  sellers  sued  him  for  the  price, 
and  then  reclaimed  the  goods,  under 
the  circumstances  stated  in  the  opin- 
ion. Bailey  then  brought  this  ac- 
tion for  the  conversion  of  the  goods. 
The  court  said:  "By  the  terms  of 
the  written  agreement  the  plaintiff 
was  bound  at  all  events  to  pay  to 
the  defendants  the  full  amount  at 
which  the  goods  were  valued,  and 
upon  such  payment  the  title  was  to 
vest  in  him.  This  payment,  there- 
fore, constitutes  the  agreed  price  of 
the  goods,  and  it  is  a  misnomer  to 
call  it  rent.  The  defendants  would 
have  no  right  to  exact  payment  in 
full  of  the  money  and  also  to  re- 
claim the  goods.  When  the  plaint- 
iff discontinued  his  payments  on 
account,  what  was  the  legal  position 
of  the  defendants?  If  it  be  assumed 
that  they  might,  at  their  option, 
either  reclaim  the  goods  as  their 
own  property,  without  any  obliga- 
tion to  account  for  their  proceeds  or 
value  to  the  plaintiff,  or  that  they 
might  collect  the  price  in  full,  it  is 
plain  that  they  were  not  entitled  to 
do  both.  They  could  not  treat  the 
transaction  as  a  valid  sale  and  an  in- 
valid one  at  the  same  time.  If  they 
reclaimed  their  property  it  must  be 
on  the  ground  that  they  elected  to 
treat  the  transaction  as  no  sale.  If 
they  brought  an  action  for  the  price 
they  would  thereby  affirm  it  as  a  sale. 
Two  inconsistent  courses  being  open 
to  them  they  must  elect  which  they 


would  pursue;  and,  electing  one,  they 
are  debarred  from  the  other.  Re- 
claiming the  goods  would  show  an 
election  to  forego  the  right  to  re- 
cover the  price.  But,  instead  of  re- 
claiming the  goods  in  the  first 
instance,  they  brought  an  action 
against  Bailey  for  the  price,  made  an 
attachment  of  his  property  by  trustee 
process,  entered  their  action  in  court, 
and  he  was  defaulted.  They  were 
thereupon  entitled  to  judgment 
against  him.  Under  this  state  of 
things,  the  action  was  continued  to 
a  later  term  of  court,  and  after  the 
lapse  of  several  months,  and  after 
the  commencement  of  the  second 
subsequent  term  of  court,  the  defend- 
ants, without  discontinuing  their  ac- 
tion, or  giving  any  notice  to  Bailey 
of  an  intention  to  abandon  that  rem- 
edy, took  possession  of  the  goods; 
and,  after  this  had  been  done,  they 
proceeded  in  their  action  to  judg- 
ment, and  took  out  execution,  upon 
which  they  collected  a  small  sum 
from  the  trustee.  They  had  thus 
made  a  decisive  election  to  treat  the 
transaction  as  a  sale  before  reclaim- 
ing the  goods;  and,  under  such  an 
election,  the  title  passed  to  Bailey. 
Butler  v.  Hildreth,5  Met.  49;  Arnold 
v.  Richmond  Iron  Works,  1  Gray, 
434,440;  Heryford  v.  Davis,  102  U.  S. 
235,  246.  For  these  reasons  a  major- 
ity of  the  court  is  of  opinion  that 
there  must  be  judgment  for  the 
plaintiff." 

In  Crompton  v.  Beach,  62  Conn.  25, 
25  Atl.  R.  446,  36  Am.  St.  R.  323,  18 
L.  R.  A.  187,  property  was  delivered 


506 


UI1.   III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§   620, 


§  620.  Does  recovery  of  goods  bar  action  for  the  price?  — 

But,  while  it  is  thus  generally  true  that  an  attempt  to  collect 
the  price,  as  such,  is  deemed  to  be  such  an  election  of  remedies 
as  will  bar  a  subsequent  recaption  of  the  goods,  is  the  converse 
of  the  proposition  true,  and  will  a  recaption  of  the  goods  bar  a 


which  was  to  become  the  property  of 
the  vendee  upon  the  payment  of  a 
certain  price  for  which  he  gave  his 
note.  It  was  also  agreed  that  upon 
default  the  vendor  should  "  have  the 
right  at  any  time  to  resume  posses- 
sion of  the  machinery,  and  to  enter 
the  premises  and  remove  the  same 
as  his  own  property;  and  if  any  por- 
tion of  said  note,  or  renewals  thereof, 
shall  remain  unpaid  when  possession 
shall  be  so  taken,  .  .  .  then 
the  amount  which  may  have  been 
paid  shall  be  for  the  use  of  said  ma- 
chinery while  in  possession  of  the 
party  of  the  second  part,  and  said 
note  shall  then  be  canceled  and  ijircn 
up:'  [Italics  mine:  F.  R.  M.]  The 
buyer  became  insolvent  and  the 
seller  first  sued  on  the  note  and  at- 
tached property,  and  afterwards 
made  claim  on  the  note  against  his 
estate  and  procured  a  dividend  of 
twenty-five  per  cent.  (See  Beach's 
Appeal,  58  Conn.  464,  20  Atl.  R.  47.1) 
The  seller  then  sought  to  recover  the 
property,  but  it  was  held  that  she 
had  made  an  election  of  remedies  by 
her  efforts  to  recover  the  price  and 
could  therefore  not  recover  the  prop- 
erty. 

In  Holt  Mfg.  Co.  v.  Ewing,  109  Cal. 
353,  42  Pac.  R.  435.  there  was  a  con- 
tract for  the  sale  of  harvesting  ma- 
chinery for  which  the  vendee  gave 
his  notes,  and  also  agreed  that  if  he 
made  default  the  vendor  might,  at 
his  option,  without  notice  and  with 
or  without  legal  proceedings,  take 
and    retain    the    property,   and   all 


moneys  paid  by  the  vendee  prior  to 
such  default  should  be  compensation 
for  the  use  of  the  machinery  up  to 
that  time.  The  buyer  died,  in  de- 
fault, and  the  notes,  without  refer- 
ence to  the  contract,  were  presented 
and  allowed  as  claims  against  his 
estate.  The  seller  afterwards  sought 
to  recover  the  machinery.  It  was 
held  that  the  presentation  and  allow- 
ance of  the  claim  was  an  elect In 

pursue  the  personal  remedy,  and  that 
the  property  could  not  !»■  recovered. 

To  like  elfecl  :  Richards  v.  S  ■hreiber, 

98  towa,  L22.67N.W.  R.  569;  Smith  v. 
Ghlmore,  7  D.  C.  A  pp.  L92. 

Prosecuting  a  claim  for  the  price 
to  final  judgment  is  an  election. 
Smith  v.  Barber,  L53  1ml.  332,  58  N. 
E.  R.  1014. 

An  attempt,  though  unsuccessful, 
to  establish  a  material-man's  lien  for 
the  property  is  a  waiver  of  the  right 
to  retake  it.  Hickman  v.  Richburg 
(1899),  122  Ala.  688,  26  S.  El  L86. 

Where  the  seller  sues  for  the  price 

and  attaches  or  levies  upon  t  lie  prop- 
erty in  question  as  the  property  of 
the  vendee,  he  thereby  treats  the 
(•out  ract  as  absolute.    Tanner  Engine 

Co.  v.  Hall,  89  Ala.  628,  7  S.  h\  187; 
Montgomery  Iron  Works  v.  Smith, 
98  Ala.  644,  18  S.  \l.  525;  Fuller  v. 
Karnes,  108  Ala.  404,  1!)  S.  \l.  866;  Al- 
bright v.  Meredith,  58  Ohio  St.  L94, 
50  N.  E.  R.  719. 

But  in  Matthews  v.  Lucia,  55  Vt. 
308,  where  the  seller  at  first  sued  and 
attached  the  goods,  and  then  discon- 
tinued the  suit  and  took  the  goods 


507 


620.] 


LAW   OF    SALE. 


[book  IT. 


subsequent  action  for  the  price?  The  cases  generally  answer 
this  question  in  the  affirmative,  though  they  often  proceed  upon 
different  reasons  and  are  not  all  capable  of  being  reconciled.  It 
is  said  in  some  of  them  that  this  is  simply  another  case  of  elec- 
tion of  remedies;  that  the  vendor  may  either  retake  his  goods 
or  proceed  for  the  price,  and,  if  he  does  one  of  these  things,  he 
cannot  afterwards  do  the  other.1  In  other  of  the  cases  it  is 
said  that  when  the  seller  reclaims  the  property  he  destroys  the 
consideration  for  which  the  promise  to  pay  was  given,  and  that 
therefore  the  promise  is  thenceforward  nudum  pactum?    In 


under  the  contract,  it  was  held  that 
the  action  was  not  a  conclusive  elec- 
tion, citing  Child  v.  Allen,  33  Vt.  476. 

In  Thomason  v.  Lewis,  103  Ala. 
426,  15  S.  R.  830,  a  suit  on  the  notes 
to  judgment,  but  the  judgment  not 
being  paid,  was  held  not  to  be  a  con- 
clusive election  which  would  bar  the 
recovery  of  the  property,  where  the 
contract  was  that  the  title  was  not 
to  pass  until  the  notes  were  paid  in 
full;  and  the  same  ruling  in  a  like 
case,  where  the  rights  of  third  per- 
sons had  not  intervened,  was  made 
in  Campbell  Printing  Press  Co.  v. 
Rockaway  Pub.  Co.,  56  N.  J.  L.  676, 
29  Atl.  R.  681. 

In  Fuller  v.  Byrne,  102  Mich.  461, 
60  N.  W.  R.  980,  the  agreement  was 
that  the  property  should  remain  the 
seller's  until  the  price 4'  and  any  judg- 
ment rendered  thereon  is  paid  in 
full."  Held,  that  the  title  did  not 
"pass  until  the  judgment  was  paid. 
Kirkwood  v.  Hoxie,  95  Mich.  62,  was 
cited. 

In  Mississippi  the  seller  may  sue 
upon  the  note  and  replevy  property 
at  the  same  time,  but  he  can  have 
but  one  satisfaction.  McPherson  v. 
Acme  Lumber  Co.,  70  Miss.  649,  12  S. 
R.  857. 

Where  there  was  an  absolute  prom- 
ise to  pay,  and  the  contract  stipulated 


that  nothing  should  "constitute  a 
defense  or  offset  or  delay  prompt 
payment  of  this  note  in  full  at  ma- 
turity," it  was  held  that  though  the 
vendor  had  reclaimed  and  resold  the 
property  and  applied  the  proceeds  on 
the  note,  he  could  sue  on  the  note 
for  the  balance.  Dederick  v.  Wolfe, 
68  Miss.  500,  9  S.  R.  350. 

In  Georgia  a  recovery  of  judgment 
and  its  part  payment  do  not  bar  seller 
of  right  of  action  against  the  goods 
for  the  balance.  Jones  v.  Snider,  99 
Ga.  276,  25  S.  E.  R.  668;  Bowen  v. 
Frick,  75  Ga.  786. 

A  transfer  to  third  persons,  apart 
from  the  contract  itself,  of  the  notes 
given  for  the  price,  is  an  election  to 
make  the  sale  absolute.  Merchants', 
etc.  Bank  v.  Thomas,  69  Tex.  237; 
Parlin  v.  Harrell,  8  Tex.  Civ.  App. 
368,  27  S.  W.  R.  1087. 

1  Thus  in  Dowdell  v.  Empire  Furn. 
Co.,  84  Ala.  316,  it  is  said  that  a  claim 
upon  the  purchase  price  after  the 
property  has  been  retaken  is  an  an- 
tagonistic position  which  cannot  be 
maintained. 

2  So  held  in  Minnesota.  Aultman 
v.  Olson,  43  Minn.  409,  45  N.  W.  R. 
852.  following  Minneapolis  Harvester 
Works  v.  Hally,  27  Minn.  495,  8  N.  W. 
R.  597,  and  distinguishing  Third  Nat. 
Bank  v.  Armstrong,  25  Minn.  530.  See 


508 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  620. 


still  other  cases  it  is  held  that,  however  it  may  be  in  name,  the 
reclamation  of  the  property  is,  in  fact,  a  rescission  of  the  con- 
tract, upon  which  thereafter  no  action  can  be  maintained.1  In 
other  cases  still,  although  these  proceed  upon  a  different  and 


also  Perkins  v.  Grobben,  116  Mich. 
172,  74  N.  W.  R  469,  39  L.  R.  A.  815, 
72  Am.  St.  R.  512. 

^lius  in  Seanor  v.  McLaughlin, 
165  Pa.  St.  150,  30  Atl.  R.  717, 32  L.  R, 
A.  467,  it  appeared  that,  under  a  con- 
tract in  form  a  lease,  articles  had 
been  delivered  which  the  lessee 
might  buy,  and,  if  he  did,  all  rent 
paid  was  to  apply  on  the  purchase 
price.  He  covenanted  to  pay  the 
"rent''  and  gave  a  judgment  bond 
as  collateral.  It  was  also  stipulated 
that  in  case  of  default  the  property 
was  to  be  returned.  The  "  lessee  " 
paid  one  instalment,  but  then  de- 
faulted, and  the  "  lessors  "  retook  the 
property,  refusing  to  surrender  the 
bond.  They  then  caused  judgment 
to  be  entered  against  the  "  lessee " 
on  the  judgment  bond,  and  the  action 
was  to  determine  the  validity  of  that 
judgment.  The  court  said  that  the 
lessors  had  two  remedies  or  securi- 
ties. They  had  reserved  the  title, 
and  they  had  the  judgment  bond. 
"  Either  remedy  was  complete  in  it- 
self, and  the  plaintiffs,  on  default, 
could  adopt  either;  but  they  were 
not  cumulative;  they  coidd  not  adopt 
both,  unless  it  was  plainly  expressed 
in  the  contract  or  a  necessary  impli- 
cation from  its  terms.  The  words  of 
this  contract  negative  such  a  con- 
struction. The  defendant  stipulates 
that  '  if  default  be  made  ...  I 
hereby  covenant  and  agree  to  return 
said  machines  .  .  .  and  they  or 
their  agent  may  resume  actual  pos- 
session of  the  same.'  That  was  the 
penalty  for  default  on  the  primary 


obligation,  and  repossession  of  the 
machines  the  discharge  of  it.  On  de- 
fault of  payment  the  plaintiffs  were 
not  bound  to  accept  the  machine  or 
take  possession  of  it;  the}- could  have 
entered  judgment  on  the  bond,  levied 
on  the  machine  and  any  other  prop- 
erty of  the  defendant  in  satisfaction 
of  their  demand.  But  they  rescinded 
the  contract  by  retaking  into  their 
possession  the  subject  of  it,  which 
they  had  a  right  to  do,  and  then  im- 
mediately entered  their  bond  and  is- 
sued execution  to  levy  on  other  prop- 
erty of  defendant,  which  they  had 
no  right  to  do,  for  the  contract  or 
obligation,  to  which  the  bond  was 
collateral,  no  longer  existed.  It  ought 
to  have  been  surrendered  to  defend- 
ant when  he  demanded  it  at  the  time 
plaintiffs  took  away  the  machine. 

"  The  contract  in  this  case  is  not 
essentially  different  from  those  in 
Campbell  v.  Hickok,  140  Pa.  St,  290, 
and  Scott  v.  Hough,  151  Pa.  St.  630,  in 
both  of  which  cases  we  held  that  the 
remedies  were  distinct  and  not  cu- 
mulative. If  the  bailor  rescinded  by 
repossessing  himself  of  the  property, 
the  right  of  personal  action  against 
the  bailee  was  at  an  end.  That  the 
words  '  rescission  '  or  '  rescind '  do 
not  occur  in  this  contract  is  not  ma- 
terial. Rescission  is  a  fact;  the  word 
itself  may  be  used  by  the  contract- 
ing parties  to  indicate  the  right,  but 
other  words  may  be  adopted  to  point 
out  that  course  of  conduct  of  the  par- 
ties which  shall  constitute  the  fact 
of  rescission. 

''The    decision    in     Campbell    v. 


509 


§  621.] 


LAW    OF    SALE. 


[BOOK    II. 


wholly  tenable  theory,  it  has  been  held  that  the  contract  im- 
posed upon  the  buyer  no  obligation  to  buy  and  pay,  but  simply 
gave  him  an  option  to  do  so;  and  if  he  did  not  pay,  the  seller's 
only  remedy  was  to  reclaim  the  goods.1 

§  621.  .  But  does  it  necessarily  follow  that  a  recovery  of 

the  property  destroys  the  consideration  for  the  contract,  or  in 


Hickok.  sujira,  was  based  on  the  stip- 
ulation of  the  contract  that  the  lessor 
had  the  right,  on  lessee's  failure  to 
pay  any  instalment,  to  repossess 
himself  of  the  property,  and,  having 
exercised  this  right,  the  contract  was 
rescinded  in  fact,  and  there  was  an 
end  of  personal  obligation  on  part  of 
lessee.  While  the  word 'rescinded' 
is  used  in  that  contract,  the  right  to 
rescind  and  the  act  necessary  to  a 
rescission  are  plainly  expressed  with- 
out it,  and  the  interpretation  was 
fully  warranted  even  if  the  word  had 
not  been  used. 

"  Here  the  plaintiffs,  in  effect,  in 
their  contract,  stipulated  that  on  de- 
fault of  payment  of  rental  they 
should  have  the  right  to  take  the 
machine  back  to  make  good  the  de- 
fault; there  was  default,  and  because 
of  it  they  took  back  the  machine. 
This  was  both  a  right  to  rescind  and 
the  exercise  of  the  right,  or  a  rescis- 
sion in  fact."  (But  see  Durr  v.  Rep- 
logle,  167  Pa.  St.  347.) 

Seanor  v.  McLaughlin  is  cited  and 
followed  in  Perkins  v.  Grobben,  116 
Mich.  172,  74  N.  W.  R.  469,  39  L.  R.  A. 
815,  where  it  is  said:  "The  contract 
provides  for  two  way  of  enforcing  it. 
The  plaintiff  might  sue  on  the  note 
and  retain  the  property  [title]  until 
the  judgment  was  paid,  or  might  re- 
take the  property,  and  treat  the  pay- 
ments up  to  that  time  made  as  pay- 
ments for  the  use,  wear  and  tear  of 
the   machineiy,   but  he  cannot  do 


both.  The  plaintiff  lias  taken  pos- 
session of  the  property  as  the  owner 
thereof.  What  have  the  defendants 
had  as  the  consideration  of  the  note  ? 
They  acquired  no  title  or  interest  in 
the  property,  and  could  not  until  they 
paid  the  notes.  They  could  not  call 
the  plaintiff  to  account  for  a  disposi- 
tion of  the  property,  if  he  has  made 
any,  because  they  had  no  interest 
whatever  in  it,  having  made  default 
in  the  payment  of  the  notes,  the 
vendor  having  exercised  his  right 
under  the  contract  to  take  posses- 
sion. The  defendants  have  simply 
had  for  the  notes  the  use  of  the  prop- 
erty, and  for  that  use  they  have  paid 
the  $800,  which  the  contract  gives 
the  vendor  the  right  to  so  apply.  The 
vendor  is  not  entitled  to  the  title  and 
possession  of  the  property,  and  to  be 
paid  for  it  also." 

Where  the  vendor  reclaims  the 
property  and  then  sells  it  as  his  own. 
or  otherwise  appropriates  the  same 
to  his  own  use,  he  does,  in  effect, 
rescind  the  contract,  and  he  cannot 
afterwards  recover  the  price.  Tufts 
v.  Brace  (1899),  103  Wis.  341,  79  N.  W. 
R.  414  See  also  Glisson  v.  Heggie 
(1898),  105  Ga.  30,  31  S.  E.  R.  118. 

i  Hine  v.  Roberts,  48  Conn.  267,  40 
Am.  R.  170;  Loomis  v.  Bragg,  50  Conn. 
228,  47  Am.  R.  638;  Beach's  Appeal, 
58  Conn.  464,  20  Atl.  R.  475;  Rodgers 
v.  Bachman,  109  CaL  552,  42  Pac.  R. 
448. 


510 


CH.  III.]       CONDITIONAL    SALE   OF  SPECIFIC   CHATTELS.       [§§  622,  G23. 

effect  rescinds  it?  As  has  been  seen  before,  these  agreements 
may  usually  be  separated  into  two  parts  —  an  executory  agree- 
ment to  sell,  and  a  bailment  of  the  property.  Either  of  these 
is  a  valid  contract  and  may  stand  alone.  May  not  the  latter  be 
withdrawn  without  necessarily  defeating  the  former?  Clearly 
it  may  be  by  express  terms  of  the  contract;  but  without  express 
provisions  to  that  effect,  may  not  the  contract  be  so  interpreted 
as  to  permit  of  this  result?  This  must  depend  upon  the  con- 
tract. If  by  a  fair  interpretation  of  the  contract  the  seller  may, 
upon  default  in  payment  or  otherwise,  have  a  right  to  resume 
possession,  may  he  not  do  so  without  rescinding,  but  holding 
the  property  still  subject  to  the  contract,  ready  to  be  restored 
if  payment  is  made  ? 

§  622,  .  In  such  a  case 1  as  this  the  court  said :  "  The  con- 
tract provides  expressly  that  the  title  to  the  property  shall  con- 
tinue to  remain  in  plaintiff  until  the  apparatus  is  paid  for,  and 
that,  in  case  of  the  non-payment  of  either  of  the  notes  at  maturity, 
the  plaintiff  shall  have  the  right  to  take  possession  of  the  prop- 
erty;  but  it  contains  no  provision  that  such  act  shall  operate  as 
a  rescission  of  the  contract  or  a  forfeiture  of  the  payments 
thereon.  The  reduction  of  the  property  to  possession  by  the 
plaintiff  does  not  excuse  performance  by  defendant,  as  defend- 
ant has  the  right,  upon  payment  of  the  amount  due,  to  a  return 
of  the  property.  Plaintiff  had  the  right,  under  the  express 
conditions  of  the  contract,  to  secure  himself  by  taking  posses- 
sion, and  the  exercise  of  this  right  under  the  contract  did  not 
entitle  the  defendant  to  rescind  the  contract,  or  to  a  recovery 
of  the  amount  paid,  or  to  a  delivery  to  him  of  the  unpaid  notes; 
neither  did  it  give  him  any  lien  upon  the  property  for  the 
amount  paid  by  him." 

§  623.  .  And  where  the  contract  provided  that  the  seller, 

if  he  should  deem  himself  insecure,  might  take  possession  of 
the  property,  even  before  the  debt  was  due,  and  might  sell  the 

1  Tufts  v.  D'Arcambal,  85  Mich.  185,  R.  A.  446.  See  also  Latham  v.  Sum- 
48  N.  W.  R.  497, 24  Am.  St.  R.  79, 12  L.     ner,  89  111.  233,  31  Am.  R.  79. 

511 


§  624.] 


LAW  OF  SALE. 


[BOOK  II. 


property  at  public  or  private  sale,  and,  after  applying  the  net 
proceeds  upon  the  debt,  recover  the  unpaid  balance,  it  was  held 
that  this  was  a  valid  and  binding  contract  by  which  the  parties 
must  abide.1 


§624. 


Waiver  by  vendor  of  right  to  retake  property. 


The  conditional  vendor  may  not  only  elect  some  other  remedy, 
but  he  may  also,  by  his  conduct,  waive  or  lose  his  right  to  re- 
take the  goods  in  case  of  default,  both  as  against  the  condi- 
tional purchaser  and  those  who  succeed  to  his  rights,  and  thus 
be  remitted  to  his  remedy  against  the  person  merely.2 

This  question  of  waiver  has  been  already  touched  upon,3  and 
no  general  rule  can  be  laid  down  in  reference  to  it,  other  than 
that  a  waiver  may  be  inferred  wherever  the  conduct  of  the 
conditional  vendor  is  inconsistent  with  the  idea  that  he  still 
expects  to  enforce  a  return  of  the  goods  if  the  conditions  be 
not  performed.4  Whether  such  is  the  case  or  not  is  a  question 
of  fact  for  the  jury.5 


1  McCormick  Harv.  Mack  Co.  v. 
Koch  (1899),  8  Okl.  374,  58  Pac.  R. 
626.  To  tbe  same  effect:  Dederick  v. 
Wolfe  (1891),  68  Miss.  500,  9  S.  R.  350. 

2  Robbins  v.  Phillips,  68  Mo.  100. 

3  See  ante,  §  609. 

4  A  vendor  of  personal  property 
who  reserves  title  until  the  pur- 
chase price  is  paid  does  not  waive 
his  right  to  retake  the  property  on 
default  by  advising  a  creditor  of  the 
vendee  with  knowledge  of  the  reser- 
vation to  take  a  mortgage  upon  the 
property.  Ames  Iron  Works  v.  Rich- 
ardson, 55  Ark.  642,  18  S.  W.  R.  381. 
Taking  a  note  for  an  instalment  due, 
the  note  being  unpaid,  is  not  a  waiver 
of  the  right  to  retake.  Levan  v.  Wil- 
ten,  135  Pa.  St.  61,  19  Atl.  R.  945.  The 


fact  that  the  vendee  is  permitted  to 
manufacture  into  goods  materials 
sold  conditionally,  and  to  sell  the 
goods  upon  the  express  agreement 
that  the  proceeds  shall  be  applied 
upon  the  price,  is  not  a  waiver.  Pren- 
tiss Tool  Co.  v.  Schirmer,  136  N.  Y. 
305,  32  N.  E.  R  849.  Taking  a  chat- 
tel mortgage  upon  other  property  is 
not  a  waiver.  Montgomery  Iron 
Works  v.  Smith,  98  Ala.  644,  13  S.  R 
525;  Cherry  v.  Arthur,  5  Wash.  787, 
32  Pac.  R.  744;  Petty  place  v.  Manu- 
facturing Co.,  103  Mich.  155,  61  N.  W. 
R.  266. 

Taking  and  foreclosing  a  mortgage 
on  the  property  itself  is  a  waiver 
(Hinchman  v.  Point  Defiance  Ry.  Co., 
14  Wash.  349,  44  Pac.  R.  8G7),  but  not 


sGoslen  v.  Campbell,  88  Me.  450.  34 
Atl.  I;.  265;  Quimby  v.  Lowell,  89  Me. 
517.  36  Atl.  R.  902;  Peabody  v.  Ma- 
guire,  79  Me.  572, 12  Atl.  R  630;  Wing 


v.  Thompson,  78  Wis.  256,  47  N.  W. 
R  606;  Page  v.  Edwards,  64  Vt.  124, 
23  Atl.  R  917. 


512 


CH.  III.]       CONDITIONAL  SALE   OF    SPECIFIC   CHATTELS.       [§§  625,  626. 

§625.  Yendee  lias  usually  no  election. —  The  choice  of 
courses  of  conduct  in  these  cases  is  usually  the  privilege  of  the 
seller  only.  Contracts  may  undoubtedly  be  so  framed  as  to 
give  to  the  conditional  purchaser  the  option  either  to  return 
the  goods  and  be  released  from  his  obligation  to  pay  for  them, 
or  to  keep  and  pay  for  them,  and  such  a  construction  has  been 
put  upon  contracts  in  a  few  cases,1  although  other  courts  upon 
the  same  contracts  would  probably  have  reached  different  con- 
clusions. In  the  great  majority  of  cases,  however,  the  obliga- 
tion of  the  conditional  purchaser  to  buy  and  pay  for  the  goods 
is  a  fixed  and  absolute  one,  from  which  he  cannot  relieve  him- 
self by  tendering  back  the  goods.2  And,  on  the  other  hand, 
the  vendor's  right  of  election,  considered  in  the  preceding  sec- 
tions, does  not  arise  until  the  vendee  is  in  default;  up  to  that 
time  the  obligation  of  the  former  to  sell  is  usually  as  absolute 
and  irrevocable  as  that  of  the  latter  to  buy. 

§  626.  Vendor's  right  to  take  possession  upon  default  — 
Entry  upon  premises  —  License. —  It  is  customary,  in  con- 
where  the  property  is  then  redeliv-  pear  to  be  the  unconditional  owner 
ered  to  the  vendee  under  the  original  and  to  sell  the  goods  as  such  (Foster 
contract  (Goodkind  v.  Gilliam,  19  v.  Warner,  49  Mich.  641,  14  N.  W.  R. 
Mont.  385,  48  Pac.  R.  548),  nor  where  673),  and  where  the  vendor  led  cred- 
the  mortgage  is  taken  on  this  and  itors  to  believe  the  sale  was  absolute, 
other  property  as  further  security,  Brayton  v.  Harding,  56  111.  App.  362. 
with  no  intention  of  waiving  the  ]  Such  was  claimed  and  tacitly  ad- 
condition.  Page  v.  Edwards,  64  Vt.  mitted  in  Beach's  Appeal,  58  Conn. 
124.  Endeavoring,  though  without  464,  20  Atl.  R.  475,  to  be  the  effect  of 
success,- to  establish  a  material-man's  Hine  v.  Roberts,  48  Conn.  267,  40  Am. 
lien  for  the  price,  is  a  waiver.  Hick-  R.  170,  and  Loomis  v.  Bragg,  50  Conn. 
man  v.  Richburg  (1899),  122  Ala.  638,  228,  47  Am.  R.  638.  So  also  Rodgers 
26  S.  R.  136.  v.  Bachman,  109  Cal.  552,  42  Pac.  R. 

But  where  the  vendor  knows  that  448.     See  also  the  contracts  of  "  Sale 

logs    contracted  to   be    sold  condi-  or  Return,"  post,  $  675  et  seq. 

tionally  are  being  removed  to  the  2Appleton  v.  Norwalk  Library  As- 

vendee's  mill,  sawed  into  lumber  and  sociation,  53  Conn.  4,  22  Atl.  R.  681; 

sold  to  third  persons  for  removal  by  Beach's  Appeal,  supra;  Geist  v.  Stier, 

them,  and  does  not  object,  there  is  134  Pa.  St.  216, 19  Atl.  R  505;  Finlay 

evidence  of  waiver  to  go  to  the  jury.  v.  Ludden    &    Bates    South.  Music 

Wing  v.  Thompson,  78  Wis.  256.  And  House  (1898),  105  Ga.  264,  31  S.  E.  R. 

so  where  the  vendor,   through  his  180. 
agents,  permitted  the  vendee  to  ap- 

33  513 


626.] 


LAW    OF    SALE. 


[BOOK    II. 


tracts  of  this  nature,  to  expressly  stipulate  that  the  vendor,  in 
case  of  the  buyer's  default,  may  resume  possession  of  the  goods, 
and  that  for  this  purpose  he  may  enter  upon  the  buyer's  prem- 
ises and  remove  them.  But  even  in  the  absence  of  such  an  ex- 
press stipulation  —  there  being  no  agreement  to  the  contrary, — 
the  seller  would  have  the  right  to  resume  possession ;  and  if  the 
goods  had  been  placed  by  the  buyer  upon  his  premises,  the 
seller  would,  it  is  held,  have  an  implied  but  irrevocable  license 
to  enter  upon  the  buyer's  premises  to  remove  the  goods.1 


1  Heath  v.  Randall,  4  Cush.  (Mass.) 
195. 

The  right  reserved  by  the  contract 
to  enter  upon  the  buyer's  premises 
to  retake  the  goods  is  irrevocable. 
Walsh  v.  Taylor,  39  Md.  592. 

In  Smith  v.  Hale  (1893),  158  Mass.  178, 
33  N.  E.  R.  493,  35  Am.  St.  R.  485,  there 
had  been  an  exchange  of  a  buggy 
for  a  heifer.  The  buggy  was  war- 
ranted, and  there  was  a  breach  of  the 
warranty  under  circumstances  en- 
titling the  person  who  acquired  the 
buggy  to  rescind.  She  tendered  back 
the  buggy  and  demanded  the  heifer, 
which  was  refused.  She  thereupon 
entered  upon  the  other's  land  and 
took  the  heifer,  and  this  action  re- 
sulted. The  court  said:  "The  most 
important  question  in  the  case  is 
whether,  on  these  facts,  the  defend- 
ant had  a  right  to  enter  upon  the 
plaintiff's  premises  and  reclaim  her 
heifer.  We  are  of  opinion  that  she 
had.  It  is  true  that  it  lias  been  held 
tiiat,  where  nothing  appears  except 
that  the  goods  of  one  person  are  upon 
the  land  of  another,  the  owner  of  the 
goods  has  no  implied  license  from  the 
owner  of  the  land  to  enter  and  take 
them  away.  Anthony  v.  Haneys,  8 
Bing.  186.  And  this  rule  has  been 
applied  to  the  case  of  a  mortgage 
of  personal  property  before  foreclos- 
ure, if   the   goods    have    been    left 


in  the  mortgagor's  possession.  Mc- 
Leod  v.  Jones,  105  Mass.  403,  7  Am. 
R.  539.  But  after  foreclosure  the 
mortgagee  has  an  implied  irrevo- 
cable license  to  enter  ami  carry  away 
his  goods.  McNeal  v.  Emerson,  15 
Gray,  384.  Where  a  piano  was  hired 
for  an  indefinite  time,  with  no  agree- 
ment giving  to  the  owner  a  right  to 
enter  the  hirer's  premises  and  re- 
claim the  piano  without  demand  or 
notice,  it  was  held  that  he  had 
no  implied  license  to  do  so.  Smith 
v.  Pierce,  110  Mass.  35.  But  where 
one  sells  personal  property  which  is 
on  his  own  land,  the  purchaser  has  an 
implied  license  to  enter  and  take  it 
away.  Nettleton  v.  Sikes,  8  Mete.  34; 
Giles  v.  Simonds,  15  Gray,  441,  77  Am. 
Dec.  373.  In  the  present  case,  on  the 
facts  assumed,  the  defendant  had  a 
right  to  the  possession  of  her  heifer 
under  her  bargain  with  the  plaintiff, 
and  it  was  the  plaintiffs  duty  to 
restore  it,  and  the  defendant  had 
demanded  it,  and  the  plaintiff  had 
refused  to  deliver  it,  and  in  this  state 
of  things,  under  the  agreement  be- 
tween them,  the  law  gave  the  defend- 
ant a  right  to  enter  and  take  away 
the  heifer  in  the  way  in  which  she 
did  it.  Drake  v.  Wells,  11  Allen,  141 ; 
Heath  v.  Randall,  4  Cush.  195;  Cooley 
on  Torts,  50  et  seq." 


,11 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  627. 


The  seller  may  act  in  person  or  by  his  agent,  and  it  is  not 
necessary  that  the  agent  should  have  or  should  exhibit  any 
authority  in  writing.1  If  the  seller  goes  in  person,  he  may  take 
with  him  such  agents  or  assistants  as  are  necessary  to  remove 
the  goods.2 

§  627.  .  Acting  in  pursuance  of  such  a  license,  and  ex- 
ercising his  right  at  a  reasonable  time  and  in  a  reasonable  man- 
ner, the  seller  needs  no  legal  process  or  other  warrant,  and  is 
not  liable  as  a  trespasser  for  his  act.3  If,  however,  he  seeks  to 
enter  at  an  unreasonable  time  or  in  an  unreasonable  manner, 
he  may  lawfully  be  resisted,  and  will  make  himself  liable  in 
damages  if  he  persists.4 


i  North  v.  Williams,  120  Pa.  St.  109, 
13  Atl.  R.  723,  6  Am.  St.  R.  695. 

2  Walsh  v.  Taylor,  39  Md.  592;  Drury 
v.  Hervey,  126  Mass.  519. 

3  Walsh  v.  Taylor,  Heath  v.  Ran- 
dall, North  v.  Williams,  siqwa;  Boyd 
v.  Lofton,  34  Ga.  494;  Watertown 
Steam  Engine  Co.  v.  Davis,  5  Houst. 
(Del.)  192. 

The  seller,  acting  in  a  proper  man- 
ner, may  not  only  peaceably  enter 
the  buyer's  house,  but  he  may  go  into 
those  rooms  or  portions  of  it  where 
he  would  be  likely  to  find  his  goods, 
without  being  thereby  a  trespasser. 
Walsh  v.  Taylor,  supra. 

4  In  Drury  v.  Hervey,  126  Mass. 
519,  it  appeared  that  the  purchaser 
of  the  chattel  rented  a  room  in  the 
house  of  a  third  person  and  there 
kept  the  chattel.  The  contract  con- 
tained the  usual  provision  giving  the 
seller  the  right  to  enter  and  take 
the  chattel  upon  default.  The  buyer 
being  in  default,  the  seller  sent  his 
servants  to  get  the  chattel.  They 
found  that  the  buyer  was  not  in, 
and  that  the  owner  of  the  house 
was  away,  but  his  wife  was  pres- 
ent.    They  showed  her  the  contract, 

51 


stated  their  business,  and  sought  ad- 
mission. She  asked  them  to  wait 
two  hours,  when  the  buyer  would  be 
back,  but  they  declined,  and,  push- 
ing her  away,  went  in  and  took  the 
chattel.  She  sued  the  seller  for  dam- 
ages for  the  assault,  and  it  was  held 
that  her  request  to  the  servants  to 
wait  was  a  reasonable  one  and  that 
their  act  was  wrongful. 

In  Van  Wren  v.  Flynn,  34  La.  Ann. 
1158,  furniture  had  been  sold  under 
the  condition  that  if  not  paid  for  it 
could  be  retaken,  and  was  placed  in 
the  buyer's  house.  Shortly  before 
the  first  payment  fell  due  the  buyer's 
wife  became  sick,  and  he  was  obliged 
temporarily  to  take  her  elsewhere. 
Before  going  he  informed  the  seller 
of  the  facts,  and  stated  that  upon  his 
return  he  would  pay;  and  to  this  the 
seller  made  no  objection.  The  buy- 
er's absence  was  unexpectedly  pro- 
tracted by  his  wife's  illness,  so  that 
he  did  not  return  until  nearly  a 
month  after  the  last  payment  was 
due.  Not  hearing  anything  further 
from  the  buyer,  the  seller  went  one 
day  with  men  and  wagon  to  the  buy- 
er's house,  which  other  members  of 


628.] 


LAW    OF    SALE. 


[BOOK    II. 


The  law,  moreover,  does  not  encourage  a  forcible  assertion 
of  one's  rights,  and  even  though  the  seller  may  have  an  irrev- 
ocable license,  if  he  cannot  enter  without  violence  or  a  breach 
of  the  peace,  he  should  desist  from  his  efforts  and  avail  himself 
of  his  legal  remedies.1 

§  628.  Necessity  of  demand  before  recovery  of  goods. — Upon 
default  by  the  buyer  his  right  to  the  further  possession  of  the 


his  family  were  occupying,  stated 
that  he  had  come  for  the  furniture, 
and,  disregarding  their  statement 
that  the  buyer  was  expected  and 
their  request  that  he  defer  until  the 
buyer  returned,  took  away  the  fur- 
niture. That  night  the  buyer  re- 
turned with  his  invalid  wife  and 
children  and  found  their  sleeping 
apartments  denuded  of  furniture,  so 
that  they  had  to  seek  accommoda- 
tions elsewhere.  The  buyer  sued  the 
seller  for  damages  and  was  permitted 
to  recover.  "The  agreement  estab- 
lished on  this  record,"  said  the  court, 
"cannot  shield  the  conduct  of  the 
defendant.  It  does  not  purport,  in 
terms,  to  confer  upon  the  defendant 
the  right  to  enter  the  house  of  plaint- 
iff in  his  absence  without  his  con- 
sent and  without  notice  and  carry 
off  its  contents.  An  agreement  con- 
ferring such  extraordinary  power 
would  need  to  be  so  clearly  worded 
and  proven  as  to  leave  nothing  to 
implication.  The  gi'ant  of  the  simple 
right  to  retake  his  furniture  on  non- 
payment of  the  price  cannot  be  con- 
strued to  embrace  such  power." 

In  North  v.  Williams,  120  Pa.  St. 
109.  13  Atl.  R.  723,  6  Am.  St.  R.  695, 
supra,  the  contract  for  the  sale  of  a 
piano  provided  that  in  case  of  default 
the  seller  or  his  agent  might  '"enter 
into  and  upon  any  premises  where 
said  piano  may  be,  and  without  let 
or  hindrance  take  away  the  same." 


The  buyer  being  in  default,  the  seller 
sent  his  agent  to  take  away  the  piano. 
The  agent  rang  the  bell  and  was  ad- 
mitted to  or  entered  the  entry  or 
vestibule  (the  case  does  not  disclose 
by  whom  he  was  admitted).  Here 
the  buyer  met  the  agent  and  asked 
him  what  he  wanted,  and  the  agent 
replied  that  he  had  come  to  tune  the 
piano.  The  buyer  asked  the  agent 
to  wait  wliile  he  went  to  call  his  wife. 
While  the  buyer  was  thus  gone,  the 
agent,  having  apparently  admitted 
other  servants  of  the  seller,  went 
with  them  into  the  parlor,  where  the 
piano  was,  and  began  to  remote  it. 
The  buyer  returning  protested,  but 
they  took  the  piano  away.  The 
buyer  sued  the  seller  in  trespass,  con- 
tending that  his  agent  had  obtained 
permission  by  a  subterfuge  and  that 
his  acts  were  a  trespass.  The  court, 
however,  held  that  as  the  seller  had 
a  right  to  enter  and  remove  the  piano, 
the  fact  that  the  agent  gained  ad- 
mission by  a  false  reason  did  not 
destroy  the  right.  "If  a  citizen  de- 
sired to  see  another  upon  business 
which  he  knew  to  be  unpleasant  to 
the  latter,"  said  the  court,  "and 
chose  to  assign  some  other  than  the 
real  reason  for  asking  admission,  he 
certainly  would  not  become  a  tres- 
passer merely  because  he  failed  to 
give  the  true  reason." 

!Drury  v.  Hervey,  126  Mass.  519; 
Churchill  v.  Hulbert,  110  Mass.  42. 


il6 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  C28. 


goods  ordinarily  ceases,  and  the  seller  is  again  invested  not  only 
with  the  title  but  with  the  right  to  the  immediate  possession 
of  the  goods.  Except,  therefore,  in  those  cases,  already  noticed,1 
in  which  the  vendor  has  permitted  the  vendee  to  believe  that 
a  previous  default  will  not  be  insisted  upon,  and  those  in  which 
the  contract  by  its  terms  requires  a  demand,2  it  is  usually  held, 
that  a  demand  for  the  goods  is  not  necessary  to  entitle  the 
vendor  to  retake  the  goods  from  the  vendee  upon  default  or  to 
maintain  replevin  for  their  recovery.3  Some  cases,  however, 
deem  a  demand  necessary.4 


i  See  ante,  §§  609,  634 

2  In  Wheeler  &  Wilson  Mfg.  Co.  v. 
Teetzlaff,  53  Wis.  211,  the  court  said: 
"  The  contract  says  the  appellant  [the 
seller]  may,  at  his  option,  take  the 
machine  away  if  the  payments  are 
not  made  according  to  the  terms  of 
the  contract.  A  fair  construction  of 
this  contract  would  require  the  ap- 
pellant to  give  notice  to  the  respond- 
ent that  it  would  exercise  its  option 
to  take  away  the  machine,  on  ac- 
count of  the  non-payment  of  the 
purchase-money,  before  an  action 
could  be  commenced  to  get  posses- 
sion thereof.  A  demand  of  posses- 
sion, or  notice  to  the  respondent  that 
the  company  would  exercise  its  op- 
tion to  take  possession  of  the  ma- 
chine, was  especially  necessary  after 
the  company  had  failed  to  take  im- 
mediate advantage  of  the  provision 
in  the  contract,  and  suffered  the  ma- 
chine to  remain  in  the  respondent's 
possession  for  several  months  after 
such  failure,  during  all  that  time  de- 
manding payment  of  the  $5  claimed 


to  be  due.  Under  such  circum- 
stances, if  the  appellant  determined 
to  avail  itself  of  the  forfeiture  of  the 
money  paid,  and  assert  its  right  to 
the  possession  and  ownership  of  the 
machine,  notwithstanding  it  had  re- 
ceived eight-ninths  of  the  purchase- 
money,  it  was  clearly  its  duty  to  give 
the  respondent  unequivocal  notice  of 
such  determination  on  its  part  before 
exercising  that  right.  Smith  v.  New- 
land,  9  Hun  (N.  Y.),  553;  Johnston  v. 
Whittemore,  27  Mich.  463;  Giddey  v. 
Altaian,  27  Mich.  206;  Deyoe  v.  Jami- 
son, 33  Mich.  94;  Cushman  v.  Jewell, 
7  Hun,  525;  Hutchings  v.  Hunger,  41 
N.  Y.  155. 

With  reference  to  the  first  portion 
of  this  holding,  its  soundness  may  be 
open  to  question;  upon  the  latter 
ground  it  is  in  accord  with  many 
cases  elsewhere. 

3  In  Hughes  v.  Kelly,  40  Conn.  148, 
it  appeared  that  Hughes  had  con- 
tracted, under  the  form  of  a  lease,  to 
sell  certain  property  to  one  Spreyer. 
Spreyer  paid  part  but  was  in  default 


4  Thus  in  Michigan  a  previous  de- 
mand, where  the  buyer  was  in  law- 
ful possession  of  the  chattel  "and 
had  nearly  paid  for  it,"  was  held 
necessary.  New  Home  Sewing  Mach. 
Co.  v.  Bothane,  70  Mich.  443, 38  N.  W. 


R.  326;  and  in  Illinois.  Hamilton  v. 
Singer  Mfg.  Co.,  54  111.  370.  So  also 
Nattin  v.  Riley,  54  Ark.  30,  14  S.  W. 
R.  1100.  Davis  v.  Emery,  11  N.  H. 
230,  which  so  held,  is  distinguished 
in  Proctor  v.  Tilton,  supra. 


517 


§  628.] 


LAW    OF    SALE. 


[BOOK   II. 


And  where  the  goods  have,  without  right,  been  transferred 
by  the  original  vendee  to  a  third  person,  the  vendor  may  also, 


as  to  several  payments,  when  the 
property  was  attached  by  Kelly,  a 
creditor  of  Spreyer,  as  the  property 
of  the  latter.  Hughes  brought  re- 
plevin against  Kelly,  having  first  de- 
manded of  him  a  return  of  the  prop- 
erty, which  was  refused.  It  was 
contended  that  as  Hughes  had  not 
demanded  the  property  of  Spreyer  he 
had  still  the  right  of  possession,  and 
therefore  Hughes  could  not  maintain 
replevin.  To  this  the  court  replied: 
"By  the  terms  of  the  contract 
Hughes  was  at  liberty,  on  the  neglect 
of  Spreyer  to  pay,  to  take  the  prop- 
erty into  his  possession  wherever 
found.  As  the  contract  says  noth- 
ing of  any  demand  to  be  made  pre- 
vious to  taking  possession  on  default 
of  payment,  we  find  no  warrant  for 
interpolating  such  a  provision  into 
the  contract." 

In  Proctor  v.  Tilton,  65  N.  H.  3,  17 
Atl.  R.  638,  Proctor  was  suing  Tilton, 
a  deputy  sheriff,  for  taking  on  a  writ 
of  replevin,  at  the  suit  of  one  Wink- 
ley,  a  horse  from  the  possession  of 
Proctor.  Tilton  defended  on  the 
ground  that  Winkley  at  the  date  of 
the  replevin  writ  was  entitled  to  pos- 
session. The  horse  had  been  sold 
conditionally  by  Winkley  to  Proctor, 
who,  though  often  requested,  had 
paid  no  part  of  the  price.  Said  the 
court:  "  By  the  terms  of  the  contract 
Proctor  had  no  title  to  the  horse. 
He  had  the  possession  with  the  priv- 
ilege of  acquiring  a  title  by  payment 
within  a  reasonable  time.  Upon  his 
failure  to  make  such  payment  in  a 
reasonable  time  his  right  to  the  pos- 
session of  the  horse  terminated,  and 
both  the  right  of  property  and  the 
right  of  possession  were  in  Winkley, 


and  he  had  the  right  to  take  the 
horse  wherever  he  could  find  it.  As 
Proctor  had  no  right  to  the  posses- 
sion against  Winkley  no  demand  was' 
necessary.  Bailey  v.  Colby,  34  N.  H. 
29;  McFarland  v.  Farmer,  42  N.  H. 
386, 390.  The  case  differs  from  Davis 
v.  Emery,  11  N.  H.  230,  where  it  was 
held  that  a  demand  and  a  reasonable 
notice  to  surrender  the  property  or 
perfect  the  title  was  necessary,  be- 
cause by  the  terms  of  the  contract 
the  bailee  had  an  election  whether 
he  would  buy  or  not.  So  also  in  Kim- 
ball v.  Farnum.  61  N.  H.  348,  a  de- 
mand was  held  necessary  because 
the  time  of  payment  had  been  ex- 
tended with  an  understanding  that 
the  vendee  might  pay  when  he  could, 
and  therefore  the  vendee's  possession 
was  lawful." 

Where  goods  are  sold  for  cash  or 
a  note  upon  delivery,  and  delivery  is 
obtained  without  paying  the  cash  or 
giving  the  note,  the  vendor,  who  has 
not  waived  it,  has  the  right  to  regain 
his  goods,  and  no  previous  demand  is 
necessary.  Salomon  v.  Hathaway, 
126  Mass.  482;  Stone  v.  Perry,  60  Me. 
48. 

It  is  immaterial  to  a  third  person 
claiming  rights  in  the  property 
whether  the  seller  made  a  demand 
for  it  before  retaking  it  from  the 
vendee.  Moses  v.  Rogers,  62  Vt.  84, 
19  Atl.  R.  118. 

If  demand  before  replevin  were 
necessary,  the  fact  that  the  buyer 
has  secreted  himself  to  prevent  a  de- 
mand, or  has  left  the  jurisdiction,  or 
denies  the  seller's  rights,  will  excuse 
the  want  of  demand.  Wall  v.  De 
Mitkiewioz,  9  D.  C.  App.  109. 
Where  the  vendor  has  taken  peace- 
518 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  G29. 


without  demand,  recover  the  goods  or  their  value  from  such 
third  person,  even  though  he  is  a  bonaf.de  purchaser  for  value.1 

§  629.  Return  of  payments  if  property  retaken  by  seller. — 

Whether  payments  already  made  upon  the  price  by  the  pur- 
chaser are  to  be  returned  to  him  in  case,  for  a  later  default,  the 
goods  are  retaken  by  the  seller,  is  a  question  which  has  given 
rise  to  some  difficulty.  If  the  contract  be  entirely  rescinded 
and  avoided  from  the  beginning,  the  seller,  it  is  held,  must  put 
the  buyer  in  statu  quo,  by  restoring  to  him  what  he  has  parted 
with  upon  the  contract.2    But,  as  has  been  seen,  it  is  not  usually 


able  possession  of  the  property,  but 
the  vendee  retakes  it  with  force,  the 
vendor  need  make  no  demand  before 
replevying  it.  Hyland  v.  Bohn  Mfg. 
Co.,  92  Wis.  157,  65  N.  W.  R  170. 

1  Gilmore  v.  Newton,  9  Allen  (Mass.), 
171,  85  Am.  Dec.  749;  Carter  v.  King- 
man, 103  Mass.  517,  (In  this  case  it 
was  a  condition  of  the  contract  that 
the  goods  should  not  be  sold  or  re- 
moved without  the  vendor's  consent. 
Having  been  sold  to  and  removed  by 
a  third  person,  he  was  held  liable  to 
the  vendor  as  for  a  con  version,  though 
he  had  acted  in  good  faith  and  had 
parted  with  the  goods  before  a  de- 
mand was  made  upon  him.)  Galvin 
v.  Bacon,  11  Me.  28;  Prime  v.  Cobb, 
63  Me.  200. 

2  Thus  in  Ketchum  v.  Brennan,  53 
Miss.  596.  where  the  vendee  had  resold 
the  property  and  the  vendor  brought 
replevin  for  it,  the  court  said:  "A 
rescission  of  the  contract  by  the 
plaintiff  was  a  condition  precedent 
to  his  right  to  sue  for  the  property; 
and,  to  rescind,  it  was  his  duty  to  re- 
turn or  offer  to  return  to  his  vendee 
what  had  been  paid  on  the  contract 
of  sale.  This  he  did."  But  see  Duke 
v.  Shackleford,  56  Miss.  552,  where 
this  statement  is  explained  and  modi- 
fied, if  not  overruled. 


In  Drew  v.  Pedlar,  87  Cal.  443,  25 
Pac.  R.  749,  22  Am.  St.  R.  257,  a  case 
of  sale  of  land  with  a  stipulation  for 
forfeiture,  in  which  the  buyer,  after 
making  a  payment  of  §1,000,  de- 
faulted until  after  the  stipulated 
time,  and  then  tendered  perform- 
ance, which  was  refused,  the  court 
said:  "  From  the  time  defendants  re- 
fused to  accept  payment  and  execute 
a  deed,  the  plaintiff  has  considered 
the  contract  rescinded  and  bases  this 
action  partly  upon  that  ground,  his 
complaint  stating  facts  from  which 
a  rescission  is  a  necessary  inference. 
Under  these  circumstances  the 
plaintiff  was  entitled  to  recover  the 
one  thousand  dollars  paid  by  him, 
less  such  actual  damages  as  may 
have  been  sustained  by  the  defend- 
ants by  plaintiff's  breach  of  the  con- 
tract. Grey  v.  Tubbs,  43  Cal.  359; 
Cleary  v.  Folger,  84  Cal.  316, 18  Am. 
St.  R.  187." 

In  Latham  v.  Davis,  44  Fed.  R.  862, 
it  is  said  that  the  better  rule  is  "  that 
in  reclaiming  the  property  the  seller 
rescinds  the  contract  in  so  far  as  it 
has  been  executed,  and  is  thereupon 
bound  to  restore  to  the  buyer  any- 
thing that  he  may  have  received  in 
the  way  of  payment."  Citing  Hamil- 
ton v.  Singer  Mfg.  Co.,  54  111.  370; 


519 


629.] 


LAW    OF    SALE. 


[book  ir. 


necessary  for  the  seller  to  go  so  far  as  to  rescind  the  contract; ! 
he  may  retake  the  property,  in  case  of  a  default,  in  pursuance 
of  the  contract  and  by  its  authority,  and  where  he  does  so  it 
is  well  settled  that,  unless  the  contract  itself  or  some  statute 


Hine  v.  Roberts,  48  Conn.  267, 40  Am. 
R.  170;  Preston  v.  Whitney,  23  Mich. 
260, —  sed  qucere. 

In  Brewster  v.  Wooster  (1892),  131 
N.  Y.  473,  30  N.  E.  R.  489,  there  seems 
to  have  been  a  clear  case  of  rescis- 
sion. 

i  In  Tufts  v.  D'Arcambal,  85  Mich. 
185,  48  N.  W.  R.  497,  24  Am.  St.  R.  79, 
12  L.  R.  A.  446,  the  condition  was 
that  the  title  should  remain  in  the 
seller  until  notes  given  for  the  price 
were  paid,  and  that  the  seller  should 
have  the  right,  in  case  of  default, 
"without  process  of  law,  to  enter 
and  retake  immediate  possession  of 
said  property,  wherever  it  may  be, 
and  remove  the  same."  The  action 
was  replevin  to  regain  possession  of 
the  property  from  the  buyer  in  de- 
fault, and  the  buyer  sought  to  im- 
press upon  the  property  a  lien  for 
the  amount  he  had  paid  upon  it. 
The  court  said:  "It  will  be  observed 
that  the  contract  here  does  not  pro- 
vide for  a  rescission  thereof  before 
plaintiff  should  have  the  right  to  re- 
duce the  property  to  his  possession. 
nor  does  it  provide  that  the  taking 
of  possession  should  rescind  the  con- 
tract or  work  i  forfeiture  of  the 
amount  paid  upon  the  apparatus,  but 
the  plaintiff  treats  the  contract  as 
still  existing  and  executory.  The 
contract  provides  expressly  that  the 
title  to  the  property  shall  continue 
to  remain  in  plaintiff  until  the  ap- 
paratus is  paid  for,  and  that,  in  case 
of  the  non-payment  of  either  of  the 
notes  at  maturity, the  plaintiff  should 
have  the  right  to  take  possession  of 


the  property;  but  it  contains  no  pro- 
vision that  such  act  shall  operate  as 
a  rescission  of  the  contract  or  a  for- 
feiture of  the  payments  thereon. 
The  reduction  of  the  property  to  pos- 
session by  plaintiff  does  not  excuse 
performance  by  defendant,  as  defend- 
ant has  the  right,  upon  payment  of 
the  amount  due,  to  a  return  of  the 
property.  Plaintiff  had  the  right, 
under  the  express  conditions  of  the 
contract,  to  secure  himself  by  taking 
possession,  and  the  exercise  of  this 
right  under  the  contract  did  not  en- 
title the  defendant  to  rescind  the 
contract,  or  to  a  recovery  of  the 
amount  paid,  or  to  a  delivery  to  him 
of  the  unpaid  notes;  neither  did  it 
give  him  any  lien  upon  the  property 
for  the  amount  paid  by  him." 

Declaring  contract  "  void." — It  is 
a  common  provision  in  contracts  of 
this  nature  that,  in  case  of  default, 
the  seller  shall  have  the  right  to  de- 
clare the  contract  "void,"  recover 
the  property,  and  retain  what  lias 
been  paid  upon  it.  What  do  the  par- 
ties mean  by  declaring  the  contract 
void?  As  of  what  time  does  it  be- 
come void?  Is  this  ecmivalent  to  a 
rescission  or  a  termination  merely? 
If  a  contract  is  void  it  is  of  no  effect, 
and  no  rights  can  be  based  upon  it 
by  either  party.  If  it  is  rescinded 
the  parties  must  ordinarily  be  placed 
in  statu  quo.  If  it  is  terminated  so 
far  as  the  vendee's  right  to  further 
possession  and  longer  time  in  which 
to  pay  are  concerned,  this  would  not 
be  inconsistent  with  the  seller's  rem- 
edy under  the  contractor  with  rights 


520 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  029. 

expressly  requires  it,  he  is  not  obliged  to  restore  what  he  has 
received,  as  a  condition  precedent  to  resuming  possession.1 
Statutes,  however,  in  some  States  do  require  it.2 


still  remaining  in  the  buyer.  Ordi- 
narily a  provision  in  a  contract  that 
it  shall  be  "  void  "  in  a  certain  con- 
tingency means  only  that  it  may  be 
treated  as  voidable.  In  Preston  v. 
Whitney,  23  Mich.  260,  the  stipula- 
tion was  that  on  default  the  seller 
should  be  entitled  to  possession,  "  and 
said  agreement  to  sell  .  .  .  shall 
become  void."  Said  the  court:  "From 
the  time  of  the  taking  of  possession 
the  agreement  for  the  sale  may  be 
treated  as  void,  or  more  properly  as 
terminated."  In  Johnston  v.  Whitte- 
more,  27  Mich.  463,  the  provision  was 
that  in  case  of  default  the  seller 
might  declare  the  agreement  void, 
recover  the  property,  and  retain  the 
payments  already  made  as  damages 
for  the  non-performance  of  the  agree- 
ment. See  also  Hayes  v.  Nashville, 
47  U.  S.  App.  713. 

1  Unless  the  contract  so  provides, 
a  return  of  what  has  been  received 
under  it  is  not  a  conditiou  prece- 
dent to  the  vendor's  right  to  recover 
the  property  on  the  seller's  default. 
"  Strictly  speaking,  his  action  in  re- 
taking the  property  is  not  a  rescission 
of  the  contract,  but  in  pursuance  of 
it."  Fairbanks  v.  Malloy,  16  111.  App. 
277.  Retaking  the  property  by  the 
seller  on  default  is  "in  affirmance, 
and  not  in  avoidance,  of  the  con- 
tract, and  the  seller  having  per- 
formed on  his  part,  the  purchaser 
could  have  no  right  to  rescind  it  or 
to  treat  it  as  rescinded."  Singer 
Mfg.  Co.  v.  Treadway.  4  III.  App.  57. 
To  same  effect:  Latham  v.  Sumner, 
89  111.  233,  31  Am.  R.  79;  Tufts  v. 
D'Arcambal.  siqira;  White  v.  Oakes, 


88  Me.  367,  34  Atl.  R.  175,  32  L.  R.  A. 
592;  Duke  v.  Shackleford,  56  Miss.  552. 

"  The  plaintiff  [seller]  was  entitled 
to  the  possession  of  the  property 
without  paying  back  anything  to 
the  defendant;  and  whether  the  de- 
fendant should  ever  receive  any- 
thing back,  or  should  be  paid  any- 
thing for  what  he  had  already  paid 
to  the  plaintiff,  is  a  question  for  fur- 
ther consideration."  Fleck  v.  War- 
ner, 25  Kan.  492. 

2  Thus,  in  Ohio  the  vendor  cannot 
retake  the  property  without  tenclei'- 
ing  back  to  the  purchaser  the  amount 
paid  by  him  "after  deducting  there- 
from a  reasonable  compensation  for 
the  use  of  such  property."  Acts  1885, 
p.  239,  §  2;  Speyer  v.  Baker,  59  Ohio 
St.  11,  51  N.  E.  R.  442;  Albright  v. 
Meredith,  58  Ohio  St.  194,  50  N.  E.  R. 
719.  This  statute  is  constitutional. 
Weil  v.  State,  46  Ohio  St.  450,  21  N. 
E.  R.  643. 

A  substantially  similar  statute  ex- 
ists in  Missouri.     R.  S.  1879,  §  2508. 

In  Vermont  and  Tennessee  the 
vendee's  rights  are  protected  by  re- 
quiring a  foreclosure  by  public  sale. 
See  French  v.  Osmer,  67  Vt,  427; 
Lieberman  v.  Puckett,  94  Tenn.  273. 

In  Louisiana  purchasers  of  sewing 
machines  are  protected.  Jenks  v. 
Howe  Sewing  Mach.  Co.,  34  La.  Ann. 
1241. 

In  Georgia,  under  the  code  and 
practice,  the  court  may  "  mould  the 
verdict  so  as  to  do  full  justice  to  the 
parties,  and  in  the  same  manner  as 
a  decree  in  equity."  Hays  v.  Jordan, 
85  Ga.  741,  11  S.  E.  R.  833,  9  L.  R.  A. 
373. 


521 


§§  630-632.]  LA.W   OF  SALE.  [book   II. 

§  630.  Equities  of  purchaser.— Whether  the  buyer, 

after  such  retaking,— not  a  rescission, —  has  any  rights  or 
equities  by  reason  of  his  payments,  which  maybe  made  effectual 
by  any  means,  is  also  a  question  of  some  uncertainty.  It  is 
usual,  in  the  contract,  to  expressly  stipulate  that  payments  al- 
ready made  shall  be  forfeited  to  the  seller,  either  as  compensa- 
tion for  use  and  depreciation  or  as  liquidated  damages  for  the 
breach  of  the  contract.  Stipulations  of  this  nature,  when 
clearly  declared  and  reasonable  in  amount,  are  constantly  en- 
forced under  the  well  settled  rules  governing  liquidated  dam- 
ages;1 but  even  where  the  stipulation  is  not  thus  reasonable, 
it  is  difficult  to  see  what  standing  the  vendee,  in  default,  can 
have  in  a  court  of  law  to  recover  from  the  vendor  the  excess 
after  satisfying  the  latter's  reasonable  demands.2  A  court  of 
equity  may  give  relief,3  but  an  adjustment  of  equities  cannot 
be  worked  out  in  an  action  of  replevin  brought  by  the  vendor 
to  recover  the  goods  upon  default,4  though  trover  may  be  found 
more  flexible.5 

§631.  How  when  action  against  third  person.— In 

actions  by  the  vendor  against  third  persons  to  recover  as  for  a 
conversion  of  the  goods  by  them,  it  is  held  that  he  may  recover 
the  full  value  of  the  goods  without  any  deduction  for  what 
may  have  been  paid  by  the  original  vendee.6 

§632.  Return  of  notes  received.— The  buyer's  note 

for  the  price  is  often  made  a  part  of  the  contract  of  sale.  Fre- 
quently the  stipulations  showing  the  conditional  character  of 

1  See,  e.  g..  Wheeler  &  Wilson  Mfg.  Mich.  463,  where,  in  an    action  of 
Co.  v.  Jacobs,  2  N.  Y.  Misc.  236.  trover,  the  seller  was  permitted  to 

2  See  Lowrie  v.  Gourlay,  112  Mich,  recover  only  according  to  his  inter- 
641,  71  N.  W.  R.   174;    Satterlee  v.  est. 

Cronkhite,  114  Mich.  634,  72  N.  W.  R.  6  Angier  v.  Taunton  Paper  Co.,  1 

616.  Gray  (Mass.),  621,  61  Am.  Dec.  436; 

3  See  Lowrie  v.  Gourlay,  supra.  Carter  v.  Kingman,   103  Mass.  517; 
*  Ryan  v.  Wayson,  108  Mich.  519,  Colcord  v.  McDonald,  128  Mass.  470; 

66  N.  W.  R.  370;  Thirlby  v.  Rainbow,  Brown  v.  Haynes,  52  Me.  578;  Everett 
93  Mich.  164,  53  N.  W.  R.  159.  v.  Hall,  67  Me.  497. 

5  See  Johnston  v.  Whittemore,  27 

522 


CH.  III.]       CONDITIONAL    SALE  OF  SPECIFIC   CHATTELS.       [§§633,634. 

the  contract  of  sale  are  incorporated  in  or  attached  to  the  note; 
on  other  occasions  the  note  is  physically  entirely  separate. 
"Whether  such  a  note  is  to  be  returned  upon  a  recovery  of  the 
property  depends  largely  upon  the  considerations  mentioned 
in  the  preceding  sections.  If  the  note  were  taken  as  payment, 
"  either  absolute  or  conditional,"  it  was  said  in  one  case,1  "  it 
might  well  be  argued  that,  as  the  plaintiffs  [the  sellers]  were 
not  entitled  both  to  the  property  and  to  the  purchase  price  of 
the  property,  they  would  be  put  to  their  election,  and,  if  they 
insisted  upon  recaption  of  the  property,  they  could  only  take 
it  after  a  surrender  of  the  notes."  So,  where  the  note  and  the 
contract  are  separate,  a  transfer  of  the  note,  apart  from  the 
contract,  thus  putting  it  out  of  the  seller's  power  to  return  it, 
is  evidence  that  he  elects  to  treat  it  as  payment,  and  this  pre- 
cludes recovery  of  the  goods.2 

§  633.  .  In  the  ordinary  case,  however,  the  note  is  not 

payment,  but  simply  evidence  of  the  undertaking  of  the  vendee ; 
and  while  if  the  seller  rescind  he  should  return  the  note,  he  is 
usually,  as  has  been  seen,  not  obliged  to  rescind,  nor  is  he  bound 
to  surrender  the  evidence  of  the  contract.3  If  a  return  in  such 
a  case  becomes  necessary,  as  where  the  action  is  for  damages 
or  a  deficiency  after  sale,  restitution  upon  the  trial  would  un- 
doubtedly suffice.4 

§  634.  Destruction  of  property  before  payment.  —  The  ques- 
tion of  the  effect  of  the  accidental  destruction  of  the  property 
before  it  was  fully  paid  for  has  also  given  rise  to  decisions  ap- 
parently in  conflict.  The  true  view  would  seem  to  be  that  the 
loss  follows  the  title.5    Hence  in  the  case  of  the  conditional 

i  Van  Allen   v.  Francis  (1899),  123  3  S.  W.  R.  363;  Lippincott  v.  Rich 

CaL  474,  56  Pac.  R.  339,  citing  Segrist  (1900),  —  Utah,  — ,  61  Pac.  R.  526.  See 

v.  Crabtree,  131  U.  S.  287, 9  Sup.  Ct.  R.  also  Fleck  v.  Warner,  25  Kan.  492: 

687.  Bauendahl  v.    Horr,   7   Blatch.  548, 

2  Merchants'  Bank  v.  Thomas  (1887),  Fed.  Cas.  No.  1,1 13. 

69  Tex.  237;  Parlin,  etc.  Co.  v.  Harrell  4  See  Brewer  v.  Ford  (1889),  54  Hun 

(1894),  8  Tex.  Civ.  Ap.  368,  27  S.W.  R.  (N.  Y.),  116. 

1084.  5  See  Williams  v.  Allen,  10  Humph. 

»Kirby  v.  Tompkins,  48  Ark.  273,  (Tenn.)  337,  51  Am.  Dec.  709;  Black 

523 


§  635.]  LAW  OF  SALE.  [UOOK  II. 

contract  to  sell,  where  no  title  passes  until  payment  in  full,  the 
loss,  unless  otherwise  provided  by  the  contract,  would  fall  upon 
the  party  agreeing  to  sell;  while  in  the  case  of  a  sale  upon 
condition  subsequent  the  loss  would  fall  upon  the  purchaser; 
and  so  the  decisions  are,  when  not  complicated  by  other  facts.1 

g  635.  .  At  the  same  time  it  is  possible  that,  even  in 

case  of  a  contract  of  the  first  kind,  the  party  undertaking  to 
sell  may,  by  the  terms  of  the  agreement,  be  entitled  to  recover 
the  sum  agreed  to  be  paid  notwithstanding  the  destruction  of 
the  property.  In  one  case 2  the  defendant  Burnley  had  entered 
into  a  contract  for  the  purchase  of  a  soda  fountain  from  the 
plaintiff  Tufts  and  had  given  his  notes  for  the  amount  payable 
at  different  times.  These  notes  stipulated  that  the  title  should 
remain  in  Tufts  until  payment,  and  in  case  of  default  in  pay- 
ment of  any  one  of  them  he  might  resume  possession.  After 
part  of  the  notes  had  been  paid,  the  property  while  in  posses- 
sion of  Burnley  was  burned  without  his  fault,  and  he  refused 
to  pay  the  remaining  notes.  Tufts  sued  to  recover  on  these 
notes  and  succeeded.  Said  the  court:  "Burnley  uncondition- 
ally and  absolutely  promised  to  pay  a  certain  sum  for  the  prop- 

v.  Webb,  20  Ohio,  304,  55  Am.  Dec.  2  Burnley  v.  Tufts,  66  Miss.  48,  5  S. 
456.  R.  627,  14  Am.  St.  R.  540.  This  case 
!See  Swallow  v.  Emery,  111  Mass.  was  approved  and  followed  in  Tufts 
855:  Stone  v.  Waite,  88  Ala.  599,  7  S.  v.  Griffin  (1890).  107  N.  C.  47,  12  S.  E. 
R.117;  Bishop  v.  Minderhout,  —  Ala.  R,  68,  22  Am.  St.  R.  863,  10  L.  R.  A. 
— ,29S.  R.  11;  Randle  v.Stone,  77  Ga.  526,  where  the  court  also  take  the 
501.  In  this  case  it  is  said:  "Thereser-  same  view  of  the  nature  of  the  con- 
vatiou  of  title  and  ownership  is  with-  tract,  i  e„  that  it  was  "a  conditional 
out  any  modification  or  condition  sale  to  be  defeated  upon  the  non- 
whatever.  It  is  absolutely  reserved  performance  of  the  conditions." 
up  to  the  maturity. of  the  notes;  not  Swallow  v.  Emery,  supra,  was  said 
only  '  title '  is  so  reserved,  but,  by  to  be  perhaps  distinguishable  upon 
way  of  emphasis,  'ownership'  is  the  ground  that  in  that  case  the 
added.  The  owner  must  bear  the  vendor  was  to  execute  a  bill  of  sale 
loss  if  there  be  no  fault  in  the  actual  to  the  vendee  upon  the  payment  of 
possessor  who  is  a  bailee.  1  Benjamin  the  price.  Burnley  v.  Tufts  is  also 
on  Sales,  §  620;  1  Parsons,  Contracts,  approved  in  Tufts  v.  Wynne,  45  Mo. 
526,  533,  537  (note),  51  Am.  R.  59,  62.  App.  42,  and  Osborn  v.  South  Shore 
63;  1  Benj..  g^  412,  427."  To  same  Lumber  Co.  (1895),  91  Wis.  526,65  N. 
effect:  Mountain  City  Mill  Co.  v.  W.  R.  184. 
Butler,  109  Ga.  469,  34  S.  E.  R.  565. 

524 


CH.  III.]  CONDITIONAL   SALE    OF   SPECIFIC    CHATTELS.  [§  636. 

erty,  the  possession  of  which  he  received  from  Tufts.  The  fact 
that  the  property  has  been  destroyed  while  in  his  custody,  and 
before  the  time  for  the  payment  of  the  note  last  due,  on  pay- 
ment of  which  only  his  right  to  the  legal  title  of  the  property 
would  have  accrued,  does  not  relieve  him  of  payment  of  the 
price  agreed  on.  He  got  exactly  what  he  contracted  for,  viz., 
the  possession  of  the  property,  and  the  right  to  acquire  an  ab- 
solute title  by  payment  of  the  agreed  price.  The  transaction 
was  something  more  than  an  executory  conditional  sale.  The 
seller  had  done  all  that  he  was  to  do  except  to  receive  the  pur- 
chase price;  the  purchaser  had  received  all  that  he  was  to  re- 
ceive as  the  consideration  of  his  promises  to  pay.  The  inquiry 
is  not  whether,  if  he  had  foreseen  the  contingency  which  has 
occurred,  he  could  have  provided  against  it,  nor  whether  he 
might  have  made  a  more  prudent  contract,  but  it  is  whether, 
by  the  contract  he  has  made,  his  promise  is  absolute  or  condi- 
tional. The  contract  made  was  a  lawful  one,  and,  as  we  have 
said,  imposed  upon  the  buyer  an  absolute  obligation  to  pay. 
To  relieve  him  from  this  obligation  the  court  must  make  a 
new  agreement  for  the  parties,  instead  of  enforcing  the  one 
made,  which  it  cannot  do."  The  contract  made  in  this  case, 
it  will  be  observed,  fell  within  the  class  of  those  which  amount 
to  "  something  more  than  an  executory  conditional  sale." 

§  636.  Additions  to  or  increase  of  property  before  pay- 
ment.— As  the  risk  of  loss  or  destruction  thus  usually  follows 
the  title,  so  the  chance  of  gain  or  advantage  from  accessions 
or  additions  to,  or  the  increase  or  increment  of,  the  chattel,  is 
usually  held  to  likewise  follow  the  title.  Thus,  in  a  number 
of  cases  where  a  conditional  contract  for  the  sale  of  a  mare 
has  been  made,  it  has  been  held  that  a  colt  foaled  before  the 
title  has  passed  belonged,  in  case  of  default,  to  the  owner  of 
the  mare,  and  this  whether  the  colt  was  begotten  before x  or 
after 2  the  making  of  the  contract.     In  the  same  manner  per- 

i  Allen  v.  Delano  55  Me.  113,  92  v.  Fitzpatrick,  56  Ala.  400.  See  also 
Am.  Dec.  573.  Desany  v.  Thorp,  70  Vt.  31,  39  Atl.  R, 

2  Buckmaster  v.  Smith,  22  Vt.  203;    309. 
Clark  v.  Hayward,  51  Vt.  14;  Elmore 

525 


§  637.]  LAW    OF    SALE.  [BOOK    II. 

manent  additions,  improvements  or  repairs  belong,  usually, 
as  accessions,  to  the  owner  of  the  chattel  to  which  they  are 
made.1 

This  is  in  analogy  to  the  rule  prevailing  in  respect  of  chat- 
tel mortgages  by  which  additions  to  the  property  or  its  increase 
inure  to  the  benefit  of  the  mortgagee.2 

§  637.  Additions  to  stock  of  goods  sold. —  But  the  doc- 
trine of  the  preceding  section  has  been  held  not  to  apply,  in 
the  absence  of  express  contract,  to  cases  of  the  sale  of  a  stock 
of  goods  from  which  the  vendee  is  to  be  permitted  to  sell  at 
retail  and  which  he  is  to  replenish  by  purchases.  Thus,  in  such 
a  case,3  the  court  said:  "There  cannot  be  a  transfer  of  title 
by  bringing  in  goods  in  this  way  without  a  clear  agreement 
to  that  effect.  The  writing  contains  no  such  agreement.  It 
nowhere  says  that  the  [seller]  is  to  acquire  any  title  under  the 
instrument.  .  .  .  It  is  silent  in  regard  to  the  ownership 
of  the  property  to  be  bought  by  [the  vendee]  to  keep  up  his 
stock.  If  it  was  the  intention  of  the  parties  that  the  title  to 
this  property  should  pass  to  the  [seller]  whenever  it  was  put 
with  the  stock  of  goods,  they  failed  to  express  it." 

iSee  Eaton  v.  Munroe,  52  Me.  63  mortgaged,  and  the  like,  will  pass 
(the  facts  of  which  are  stated  in  the  by  the  mortgage.  Harding  v.  Co- 
note  to  the  following  section).  But  burn,  12  Mete.  (Mass.)  833,  46  Am. 
in  Wiggins  v.  Snow  (1891),  89  Mich.  Dec.  680;  Perry  v.  Pettingill,  33  N.  H. 
476,  50  N.  W.  R.  991,  where  the  vendor  433;  Crosby  v.  Baker,  6  Allen  (Mass.), 
failed  to  supply  certain  parts  or  ap-  295;  Ames,  Ex  parte,  1  Low.  (U.  S. 
purtenances  of  a  machine  sold,  and  C.  C.)  561 ;  Bryant  v.  Pennell,  61  Me. 
the  vendee  was  obliged  to  procure  108,  14  Am.  R.  550.  So  will  the  young 
them,  it  was  held  that  these  parts  born  of  animals  mortgaged.  Rogers 
belonged  to  the  vendee  and  could  v.  Highland,  69  Iowa,  504,  29  N.  W. 
not  be  taken  by  the  seller  on  recov-  R.  429,  58  Am.  R.  230;  Kellogg  v. 
ering  the  machine.  See  also  Rich-  Lovely,  46  Mich.  131,  8  N.  W.  R.  699, 
ardson  Drug  Co.  v.  Teasdall  (1897),  41  Am.  R.  151;  Darling  v.  Wilson,  60 
52  Neb.  698,  72  N.  W.  R.  1028,  more  N.  H.  59,  49  Am.  R.  305. 
fully  referred  to  in  section  following  3  Harding  v.  Lewenberg  (1899),  174 
on  "Accession  and  confusion,"  § 642.  Mass.  394,  54  N.  E.  R.  870.     Ricliard- 

2 Thus  additions,  repairs  or  im-  son  Drug  Co.  v.  Teasdall  (1897),  52 

provements  to  chattels  mortgaged,  Neb.  698,  72  N.  W.  R  1028,  accords, 
completions  of  incomplete  chattels 

526 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC    CHATTELS.       [§§  638,  039. 

§  638.  Changes  in  the  form  or  nature  of  the  property. — 

"Where,  after  the  delivery  to  the  prospective  purchaser,  but 
before  payment,  the  goods  are  changed  in  form  or  nature  or 
are  incorporated  into  other  chattels,  the  question  of  the  right 
of  the  proposed  seller  to  follow  and  recover  them,  in  case  of 
default,  presents  interesting  and  difficult  considerations.  The 
question  has  not  frequently  presented  itself  in  reference  to  the 
class  of  cases  now  under  consideration,  but  analogy  to  general 
principles  would  seem  to  suggest  the  following  rules,  under 
which  the  seller's  rights  would  be  preserved,  unless  he  has 
done  something  to  waive  them  or  estop  himself  from  asserting 
them.1  The  question  may  present  itself  in  three  classes  of 
cases:  (1)  Where  the  change  was  wrongfully  made;  (2)  where 
it  was  not  wilful  but  accidental,  as  through  a  mistake  of  fact; 
and  (3)  where  the  change  was  rightful,  or  at  least  made  with- 
out wilful  or  intentional  wrong. 

§  639.  ,  1.  Where  the  prospective  purchaser  has  made 

the  change  wrongfully,  the  proposed  seller  may,  in  case  of  de- 
fault, recover  his  property  in  its  changed  form,  without  refer- 

1  In  Eaton  v.  Munroe,  52  Me.  63,  possession  of  the  lumber  after  de- 
plaintiff  had  delivered  to  one  Hall  fault  in  payment  by  the  purchaser, 
about  $40  worth  of  canvas.  This  In  "Wing  v.  Thompson,  78  Wis.  256, 
Hall  was  to  make  into  a  sail  which  47  N.  W.  R.  606,  a  contract  had  been 
was  to  remain  the  property  of  plaint-  made  for  the  sale  of  standing  timber 
iff  until  paid  for.  Hall  had  the  can-  which  was  to  be  cut  and  removed  by 
vas  made  into  the  sail,  as  agreed,  at  the  vendees  and  kept  in  their  pos- 
an  expense  for  labor  and  materials  of  session,  but  the  title  was  to  remain 
about  $18,  and  then,  without  paying  in  the  vendor  until  full  payment  was 
plaintiff,  sold  the  sail  to  one  Chase,  made.  Said  the  court:  "It  may  be 
and  Chase  sold  it  to  defendant.  The  premised  that  a  contract  of  this  kind 
plaintiff,  after  demand,  replevied  the  is  not  favored  in  the  law.  and  the 
sail  and  was  held  entitled  to  recover,  right  to  enforce  the  reservations  as 
not  only  because  the  sail  was  to  be  against  a  bona  fide  purchaser  with- 
his  until  paid  for,  but  also  on  the  out  notice  must  be  based  upon  evi- 
ground  of  accession.  dence  which  shows  that  the  plaintiff 

In  Hineman  v.  Matthews,  138  Pa.  has  not  done  anything  in  regard  to 
St.  204,  20  Atl.  E.  843,  10  L.  R.  A.  233,  such  property  while  in  the  hands  of 
it  was  held,  that,  where  timber  was  his  vendee  which  would  amount  to 
conditionally  sold,  the  fact  that  it  a  waiver  of  his  right  or  estop  him 
was  converted  into  lumber  did  not  from  asserting  his  title  against  a  pur- 
deprive  the  seller  of  his  right  to  take  chaser  from  his  vendee." 

527 


639.] 


LAW  OF  SALE. 


[BOOK  II. 


ence  to  the  degree  of  the  improvement  or  the  additional  value 
given  to  it  by  the  labor  of  the  wrong-doer,  provided  that  the 
original  chattels  are  still  capable  of  identification,  or,  accord- 
ing to  some  cases,  provided  that  they  can  be  traced  into  the 
new  form  though  their  identity  be  lost.1     "  This  rule,"  says 


1 "  As  a  general  rule,"  says  Cooley, 
J..  "  one  whose  property  has  been  ap- 
propriated by  another  without  au- 
thority has  a  right  to  follow  it,  and 
recover  the  possession  from  any  one 
who  may  have  received  it;  and  if,  in 
the  meantime,  it  has  been  increased 
in  value  by  the  addition  of  labor  or 
money,  the  owner  may,  nevertheless, 
reclaim  it,  provided  there  has  been 
no  destruction  of  substantial  iden- 
tity. So  far  the  authorities  are  agreed. 
A  man  cannot  generally  be  deprived 
of  his  property  except  by  his  own 
voluntary  act  or  by  operation  of  law; 
and  if  unauthorized  parties  have  be- 
stowed expense  or  labor  upon  it,  that 
fact  cannot  constitute  a  bar  to  his 
reclaiming  it,  so  long  as  identifica- 
tion is  not  impracticable.  But  there 
must,  nevertheless,  in  reason  be  some 
limit  to  the  right  to  follow  and  re- 
claim materials  which  have  under- 
gone a  process  of  manufacture.  .  .  . 
No  test  which  satisfies  the  reason  of 
the  law  can  be  applied  in  the  adjust- 
ment of  questions  of  title  to  chattels 
by  accession  unless  it  keeps  in  view 
the  circumstance  of  relative  values. 
When  we  bear  in  mind  the  fact  that 
what  the  law  aims  at  is  the  accom- 
plishment  of  substantial  equity,  we 
shall  readily  perceive  that  the  fact 
of  the  value  of  the  materials  having 
been  increased  a  hundred  fold  is  of 
more  importance  in  the  adjustment 
than  any  chemical  change  or  me- 
chanical transformation, which,  how- 
ever radical,  neither  is  expensive  to 
the  party  making  it,  nor  adds  mate- 


rially to  the  value."    Wetherbee  v. 
Green,  22  Mich.  311,  7  Am.  R.  653. 

"In  Betts  v.  Lee,  5  Johns.  348,  4 
Am.  Dec.  368,  it  was  decided,"  says 
Kuggles,  J.,  "  that  as  against  a  tres- 
passer the  original  owner  of  the 
property  may  seize  it  in  its  new 
shape,  whatever  alteration  of  form 
it  may  have  undergone,  if  he  can 
prove  the  identity  of  the  original 
materials.  That  was  a  case  in  which 
the  defendant  had  cut  down  the 
plaintiff's  trees  and  made  them  into 
shingles.  The  property  could  neither 
be  identified  by  inspection  nor  re- 
stored to  its  original  form;  but  the 
plaintiff  recovered  the  value  of  the 
shingles.  So  in  Curtis  v.  Groat,  6 
Johns.  168,  5  Am.  Dec.  204,  a  tres- 
passer cut  wood  on  another's  land 
and  converted  it  into  charcoal.  It 
was  held  that  the  charcoal  still  be- 
longed to  the  owner  of  the  wood. 
Here  was  a  change  of  the  wood  into 
an  article  of  different  kind  and  spe- 
cies. No  part  of  the  substance  of 
the  wood  remained  in  its  original 
state;  its  identity  could  not  be  ascer- 
tained by  the  senses,  nor  could  it  be 
restored  to  what  it  originally  was. 
That  case  distinctly  recognizes  the 
principle  that  a  wilful  trespasser 
cannot  acquire  a  title  to  property 
merely  by  changing  it  from  one  spe- 
cies to  another.  And  the  late  Chan- 
cellor Kent,  in  his  Commentaries 
(vol.  2,  p.  363),  declares  that  the  Eng- 
lish law  will  not  allow  one  man  to 
gain  a  title  to  the  property  of  an- 
other upon  the  principle  of  accession 


528 


CH.  III.]       CONDITIONAL    SALE  OF  SPECIFIC    CHATTELS.       [§§  640,  641. 


Ruggles,  J.,1  "  holds  good  against  an  innocent  purchaser  from 
the  wrong-doer,  although  its  value  be  increased  a  hundred 
fold  by  the  labor  of  the  purchaser.  This  is  a  necessary  con- 
sequence of  the  continuance  of  the  original  ownership."  An 
exception  exists  where  the  change  was  made  by  the  innocent 
purchaser  himself,  believing  himself  to  be  the  owner.  In  this 
case,  if  the  identity  be  destroyed,  the  true  owner  may  recover 
only  the  value  of  the  original  chattel  and  not  the  chattel  in 
its  improved  or  altered  form.2 

|  640.  .  2.  Where  the  change  was  not  wilful,  but  acci- 
dental, and  the  original  can  still  be  identified,  the  owner  may 
have  it  in  its  altered  form  unless  the  additions  have  gone  fur- 
ther than  the  original  chattel  to  make  up  its  present  improved 
form,  in  which  case  he  may  have  simply  the  value  of  the  orig- 
inal.3 

§  641,  .  3.  Where  the  change  was  not  wrongful,  the  orig- 
inal owner  may  recover  his  chattel  even  in  its  improved  form 


if  he  took  the  other's  property  wil- 
fully as  a  trespasser;  and  that  it  was 
settled  as  early  as  the  time  of  the 
Year  Books  that  whatever  alteration 
of  form  any  property  had  undergone, 
the  owner  might  seize  it  in  its  new 
shape  if  he  could  prove  the  identity 
of  the  original  materials.  The  same 
rule  has  been  adopted  in  Pennsyl- 
vania: Snyder  v.  Vaux,  2  Rawle,  427, 
21  Am.  Dec.  406."  Silsbury  v.  Mc- 
Coon,  3  N.  Y.  379,  53  Am.  Dec.  307. 
In  this  case  whisky  made  from  corn 
wrongfully  taken  was  held  to  be- 
long to  the  owner  of  the  corn.  See 
also  interesting  illustrations  and  dis- 
cussions in  Strubbee  v.  Railway  Co., 
78  Ky.  481,  39  Am.  R.  251;  Murphy  v. 
Railroad  Co.,  55  Iowa,  473,  8  N.  W. 
R.  320,  39  Am.  R.  175;  Hazelton  v. 
Weeks,  49  Wis.  661,  35  Am.  R.  796; 
Heard  v.  James,  49  Miss.  236. 

1  In  Silsbury  v.  McCoon,  supra.  To 
same    effect:    Strubbee  v.   Railway 


Co.,  supra,  disapproving  of  Lake 
Shore  R.  Co.  v.  Hutchins,  32  Ohio  St. 
571,  30  Am.  R.  629. 

2  Silsbury  v.  McCoon,  supra;  Weth- 
erbee  v.  Green,  supra. 

sWetherbee  v.  Green,  22  Mich.  311, 
7  Am.  R.  653,  is  the  leading  case 
upon  this  subject.  There  timber  of 
the  value  of  $25  had  been,  in  the 
exercise  of  what  was  supposed  to 
be  proper  authority,  converted  into 
hoops  of  the  value  of  $700,  and  it 
was  held  that  while,  as  a  general 
rule,  the  owner  may  recover  his  prop- 
erty in  its  increased  form,  yet  where, 
as  here,  the  act  was  not  wilful,  and 
the  change  in  value  was  so  great,  he 
could  recover  only  the  original  value. 
But  in  Isle  Royal  Mining  Co.  v.  Her- 
tin,  37  Mich.  332, 26  Am.  R.  520,  where 
the  disparity  in  values  was  slight, 
the  contrary  result  was  reached. 
See  the  note  to  this  case  in  26  Am. 
R.525. 


34 


529 


R  642.]  LAW    OF    SALE.  [BOOK    II. 

unless  its  identity  has  been  lost,  or  the  alterations  or  additions 
exceed  it  in  value,  in  which  case  also  he  may  recover  simply 
the  value  of  the  original.1 

§  642.  Accession  and  confusion  of  goods.— The  question  of 
the  confusion  of  goods  presents  substantially  the  same  consider- 
ations. Four  cases  may  here  present  themselves:  (1)  The  au- 
thorized commingling.  (2)  The  wilful  or  tortious  comming- 
ling. (3)  The  unintentionally  mistaken  commingling;  and 
(4)  The  commingling  by  accident  or  vis  major.  Without  going 
at  large  into  the  subject,  it  may  be  said  that  the  following 
rules  apply: 

1.  Where  the  commingling  was  with  the  consent  of  the  par- 
ties, they  become  tenants  in  common  of  the  mass.2 

2.  Where  the  confusion  was  tortious,  the  parties  will  still  be 
treated  as  tenants  in  common,  if  the  parts  are  of  like  nature 
and  value;  or,  if  the  goods  of  each  can  be  distinguished,  then 
each  may  take  his  own;  but  where  they  are  of  different  kinds 
and  value,  or  the  goods  of  each  cannot  be  distinguished,  the 
innocent  owner  will  take  the  whole.3 

i  See  2  Schouler,  Personal  Property,  R.  226;  First  Nat.  Bank  v.  Schween, 

37;  Bishop,  Non-Contract  Law,  §  939.  127  111.  573,  11  Am.  St.  R  174;  First 

2  Dole  v.  Olmstead,  36  111.  150,85  Nat.  Bank  of  Elgin  v.  Kilbourne,  20 
Am.  Dec.  397;  S.  C,  41  111.  344,  89  Am.  N.  E.  R.  681 ;  Stephenson  v.  Little,  10 
Dec.  386;  Sexton  v.  Graham,  53  Iowa,  Mich.  433. 

181,  4  N.  W.  R.  1090;  Nowlen  v.  Colt,  In  Richardson  Drug  Co.   v.  Teas- 

6  Hill  (N.  Y.),  461,  41  Am.  Dec.  756.  dall  (1897),  52  Neb.  698,  72  N.  W.  R. 

3  "  There  is  no  forfeiture,"  says  1028,  where  the  subject-matter  of  the 
Shepley,  C.  J.,  "in  a  case  of  a  fraud-  sale  was  a  stock  of  drugs,  which  the 
ulent  intermixture  when  the  goods  vendee  was,  by  the  contract,  to  dis- 
intermixed  are  of  equal  value.  This  pose  of  at  retail  and  not  to  deplete, 
has  not  been  sufficiently  noticed,  and  it  was  held  that,  on  default,  the 
yet  it  is  a  just  rule  and  is  fully  sus-  vendor  was  entitled  only  to  so  much 
tained  by  authority."  Hesseltine  v.  of  the  original  stock  as  remained  un- 
Stockwell,  30  Me.  237,  50  Am.  Dec.  disposed  of,  and  not  to  additions 
627.  See  also  Robinson  v.  Holt,  39  made  by  the  vendee;  and  that  the 
N.  H.  557,  75  Am.  Dec.  233;  First  Nat.  vendee's  mixing  of  the  goods  abso- 
Bank  v.  Hummel,  14  Colo.  259,  23  lutely  purchased  by  him  with  the 
Pac.  R.  986,  20  Am.  St.  R.  257;  Little  goods  conditionally  purchased  was 
Pittsburg  Mining  Co.  v.  Mining  Co.,  neither  wrongful  nor  fraudulent 
11  Colo.  223,  17  Pac.  R.  760,  7  Am.  St.  within  such  principles  as  are  dis- 

530 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§  64:3-045. 

3.  If  the  confusion  was  caused  by  the  unintentional  mistake 
of  the  party  making  it,  the  parties  will  usually  be  regarded  as 
tenants  in  common,  if  their  contributions  are  of  like  kind  and 
value,  and  the  share  of  each  can  be  ascertained ;  but,  if  not,  the 
person  by  whose  carelessness,  folly  or  misfortune  the  confusion 
was  caused  must  lose  his  share.1 

4.  If  the  confusion  was  caused  by- inevitable  accident  or  vis 
major,  each  may  recover  his  share  if  distinguishable,  otherwise 
they  will  be  held  to  be  tenants  in  common  of  the  mass.2 

§643.  Substitution  of  goods. —  If  the  property  originally 
agreed  to  be  sold  is  exchanged  by  the  prospective  purchaser  for 
other  chattels,  the  latter  do  not  thereby  become  the  property 
of  the  vendor  or  subject  to  the  contract,3  though  with  the  con- 
sent of  both  parties  such  a  substitution  may  be  made.4 

§  644.  Effect  of  annexing  chattels  conditionally  sold  to  the 
freehold. —  The  annexation  of  the  chattels  contracted  to  be 
sold  to  his  freehold  by  the  conditional  purchaser  raises  all  of 
the  vexed  and  difficult  questions  which  attend  the  subject  of 
fixtures  generally. 

§  645.  As  between  the  immediate  parties  to  the  trans- 
action there  can  ordinarily  be  no  difficulty  in  preserving  the 
character  of  the  chattels  as  personalty,  even  though  annexed 

cussed  in  the  text.   Wiggins  v.  Snow,  S.  R.  717,  it  is  held  that  if  a  horse  sold 

89  Mich.  476,  50  N.  W.  R.  991,  was  conditionally   be  wrongfully  killed 

cited  and  relied  upon.   See  also  Hard-  by  a  railroad  company,  either  the 

ing  v.  Lewenberg,  174  Mass.  394,  54  vendor  or  vendee  may  sue  to  recover 

N.  E.  R.  870.  the  damages.   If  the  vendee  sues  and 

1  Ryder  v.  Hathaway,  21  Pick,  recovers,  the  vendor  has  a  claim  upon 
{Mass.)  298;  Pratt  v.  Bryant,  20  Vt.  the  vendee  for  money  had  to  his  use 
333;  Hesseltine  v.  Stockwell,  supra;  to  the  extent  of  the  original  purchase 
Thome  v.  Colton,  27  Iowa,  425.  price;   but  if  the  vendee   uses  the 

2  Spence  v.  Insurance  Co.,  L.  R.  3  money  to  buy  another  horse,  it  does 
C.  P.  427;  Moore  v.  Railway  Co.,  7  not  become  the  property  of  the  orig- 
Lans.  (N.  Y.)  39.  inal  vendor,  nor  has  he  any  lien  upon 

3  Nattin  v.  Riley,  54  Ark.  30,  14  S.  it  for  the  purchase  price  of  the  horse 
"W.  R.  1100;  Dedman  v.  Earle,  52  Ark.  killed. 

164,  12  S.  W.  R.  330.  *  Kelsey  v.  Kendall,  48  Vt.  24 ;  Perry 

In  Smith  v.  Gufford,  36  Fla.  481,  18    v.  Young,  105  N.  C.  463, 11  S.  E.  R.  511. 

531 


§  616.] 


LAW    OF    SALE. 


[book  II. 


to  the  realty  with  the  seller's  assent,  so  long  as  they  remain 
distinguishable  and  severable.1  The  same  rule  applies  also 
asrainst  creditors  of  the  vendee:2  but  when  the  claims  of  mort- 
gagees  or  purchasers  of  the  land,  to  which  such  chattels  have 
been  annexed,  arise,  questions  of  difficulty  present  themselves. 


646. 


As  against  subsequent  purchasers  without  no- 


tice, the  condition,  by  the  weight  of  authority,  could  net  oper- 
ate to  characterize  as  personalty  that  which  appears  to  be,  and 
by  its  ordinary  nature  is,  a  part  of  the  realty.3  The  same  rule 
also  applies  in  respect  of  a  subsequent  mortgagee  of  the  land 
where  he  takes  without  notice,4  but  not  where  he  took  with 


1  Harkey  v.  Cain,  69  Tex.  146,  6  S. 
W.  R  637;  Brewing  Ass'n  v.  Manu- 
facturing Co.,  81  Tex.  99.  16  S.  W.  R 
797;  Lansing  Iron  Works  v.  Walker, 
91  Mich.  409,  51  N.  W.  R.  1061,  30  Am. 
St.  R.  488;  Tyson  v.  Post,  108  N.  Y. 
217,  15  N.  E.  R.  316,  2  Am.  St.  R.  409; 
Rogers  v.  Cox,  96  Ind.  157,  49  Am.  R. 
152;  Price  v.  Malott,  85  Ind.  266,  109 
Ind.  22;  Hendy  v.  Dinkerhoff,  57  Cal. 
3,  40  Am.  R.  107;  Haven  v.  Emery,  33 
N.  H.  66. 

2Sturgis  v.  Warren,  11  Vt.  433:  Sis- 
son  v.  Hibbard,  75  N.  Y.  542. 

s  Prince  v.  Case,  10  Conn.  375,  27 
Am.  Dec.  675;  Powers  v.  Dennison,  30 
Vt.  752;  Hunt  v.  Bay  State  Iron  Co., 
97  Mass.  279;  Tibbetts  v.  Home,  65 
N.  H.  242,  23  Atl.  R.  145,  23  Am.  St. 
R  31;  Stillman  v.  Flenniken,  58  Iowa, 
450,  43  Am.  R  120,  10  N.  W.  R.  842; 
Hobson  v.  Gorringe  (1897),  1  Ch.  182; 
Watson  v.  Alberts,  120  Mich.  508,  79 
N.  W.  R.  1048;  Landigan  v.  Mayer 
(18981,  32  Oreg.  245,  51  Pac.  R.  649,  67 
Am.  St.  R  521.  But  see  Mott  v. 
Palmer,  1  N.  Y.  564;  Ford  v.  Cobb, 
20  N.  Y.  344.  where  it  is  held  that  the 
subsequent  purchaser  gets  no  title, 
but  must  rely  on  the  warranties  in 
3 »is  deed. 


4  Hopewell  Mills  v.  Taunton  Sav- 
ings Bank,  150  Mass.  519,  15  Am.  St. 
R.  235,  6  L.  R.  A.  249,  23  N.  E.  R.  327 
[citing  Hunt  v.  Bay  State  Iron  Co., 
supra;  Thompson  v.  Vinton,  121  Mass. 
139;  Southbridge  Sav.  Bank  v.  Exeter 
Mach.  Wks.,  127  Mass.  542;  Case  Mfg. 
Co.  v.  Garven,  45  Ohio  St.  289,  13  N. 
E.  R  493];  Tibbetts  v.  Home,  65  N.  H. 
242,  23  Atl.  R.  145,  23  Am.  St,  R.  81; 
Pierce  v.  George,  108  Mass.  78;  Wickes 
v.  Hill,  115  Mich.  333,  73  N.  W.  R.  375. 
But  contra  in  Alabama.  Warren  v. 
Liddell  (1895),  110  Ala.  232,  20  S.  R.  89, 
citing  many  other  cases  from  that 
state. 

A  planer  used  in  a  saw-mill,  al- 
though some  fastening  be  necessary 
to  its  use,  is  not  such  a  fixture  as  to 
pass  with  a  subsequent  mortgage  of 
the  realty,  as  against  the  conditional 
vendor,  especially  as  the  mortgage 
was  merely  to  secure  an  antecedent 
indebtedness.  Cherry  v.  Arthur,  5 
Wash.  787,  32  Pac.  R.  744. 

When  chattels  are  sold  under  an 
agreement  that  the  title  shall  not 
pass  until  full  payment,  and  are  de- 
livered to  the  purchaser  after  he  has 
made  a  mortgage  covering  after- 
acquired   property,  of  which  mort- 


532 


CH.   III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§   647. 


notice  that  the  chattels  still  retained  their  character  as  per- 
sonalty.1 


647. 


As  to  a  prior  mortgagee  of  the  land,  the  rule 


seems  to  be  that  a  chattel  not  intended  to  become  a  fixture,  and 
so  affixed  as  to  be  removable  without  destroying  or  seriously 
injuring  either  the  chattel  itself  or  the  realty  to  which  it  is 
attached,  may,  by  virtue  of  a  reservation  of  title  in  the  vendor, 
retain  its  character  as  personalty  and  be  subject  to  his  rights.2 


gage  the  vendor  has  constructive 
notice  through  its  record,  the  vend- 
or's lien  on  such  chattels  for  their 
price  will  prevail,  as  against  the 
mortgagee,  provided  such  chattels 
are  separate  and  distinct  personalty, 
and  do  not  become  part  of  the  real 
estate  mortgaged;  but  if,  with  the 
consent  of  the  vendor,  implied  by  his 
knowledge  of  the  mortgage,  such 
chattels  become  part  of  the  realty, 
they  are  subject  to  the  lien  of  the 
mortgage.  A  stipulation  in  a  con- 
tract for  the  sale  of  chattels  that 
they  shall  not  become  or  be  deemed 
a  part  of  any  real  estate  cannot  alter, 
as  against  one  not  a  party  to  such 
contract,  the  legal  effect  of  what  may 
afterwards  be  done  with  such  chat- 
tels. New  York  Sec.  &  Tr.  Co.  v. 
Capital  Ry.  Co.,  77  Fed.  R.  529. 

1  Horn  v.  Indianapolis  Nat.  Bank, 
125  Ind.  381, 21  Am.  St.  R.  231,  9  L.  R 
A.  676,  25  N.  E.  R.  558. 

The  retention  of  open  control  by  a 
vendor's  employee  over  machinery 
placed  in  the  works  of  a  company 
which  were  being  fitted  up  by  the 
vendee  is  notice  to  said  company  of 
the  existence  of  a  vendor's  lien.  Holly 
Mfg.  Co.  v.  New  Chester  Water  Co., 
48  Fed.  R.  879. 

Where  machinery  is  sold  and  placed 
in  a  building  for  the  purpose  of  mak- 
ing it  available  as  a  manufactory,  but 


under  an  agreement  between  the 
seller  and  buyer  that  the  title  shall 
remain  in  the  former  until  it  is 
wholly  paid  for,  it  may  properly  be 
deemed  personal  property  as  against 
a  mortgagee  who  with  full  knowl- 
edge consents  to  the  arrangement, 
and  may  be  removed  by  the  seller 
who  retained  the  title,  although  it 
has  the  character  of  a  fixture  and 
has  been  permanently  annexed.  Haw- 
kins v.  Hersey,88  Me.  394, 30  Atl.  R.  14. 

Chattels  were  conditionally  sold  to 
the  tenant  of  a  building,  who  placed 
them  in  the  building,  but  without  af- 
fixing them  to  such  an  extent  that 
they  could  not  be  removed  without  in- 
jury to  the  building.  He  surrendered 
the  building  with  those  chattels  to  his 
landlord,  who  afterwards  leased  the 
building  and  the  chattels  to  other 
tenants;  but  it  was  held  that  the 
surrender  of  the  building  with  these 
chattels  affixed  did  not  affect  the 
title  of  the  conditional  vendor  or  his 
right  to  remove  them.  Medicke  v. 
Sauer,  61  Minn.  15,  63  N  W.  R.  110. 

2Binkley  v.  Forkner,  117  Ind.  176, 
19  N.  E.  R.  753,  3  L.  R.  A.  31;  Eaves 
v.  Estes,  10  Kan.  314,  15  Am.  R.  345; 
Tifft  v.  Horton,  53  N.  Y.  377,  13  Am. 
R.  537;  Campbell  v.  Roddy,  44  N.  J. 
Eq.  244,  14  Atl.  R.  279,  6  Am.  St.  R. 
889;  Fosdick  v.  Schall,  99  U.  S.  235; 
Schumacher  v.  Allis,  70  111.  App.  556; 


533 


§§  648,  649.]  J'AW   OF   SALE.  [book   it, 

"Where,  however,  "  the  articles  are  of  such  a  character  that 
their  detachment  would  involve  a  destruction  or  dismantling  of 
an  important  feature  of  the  realty,  such  annexation  might  well 
be  regarded  as  an  abandonment  of  the  lien  by  him  who  im- 
pliedly assented  to  the  annexation."  l 

§  648.  Conflict  of  laws.— Contracts  of  this  sort,  though 
made  in  one  State,  and  in  contemplation  of  its  laws,  may,  by 
reason  of  the  removal  of  the  parties  or  the  property  into  an- 
other State,  fall  within  the  influence  of  varying  if  not  conflict- 
ing laws;  and  it  becomes  necessary  to  inquire  by  what  law  the 
rights  of  the  parties  are  to  be  determined. 

§  649.  "The  general  rule,"  it  is  said  in  one  case,2  "is 

that  the  validity  and  effect  of  contracts  relating  to  personal 
property  are  to  be  determined  by  the  laws  of  the  State  or 
country  where  they  are  made,  and,  as  a  matter  of  comity,  they 
will,  if  valid  there,  be  enforced  in  another  State  or  country, 
although  not  executed  or  recorded  according  to  the  law  of  the 
latter.  And  the  rule  has  been  applied,  in  a  great  number  of 
cases,  to  chattel  mortgages,  where  the  mortgagor  removes 
with  the  property  into  another  State,  continuing  in  possession 
of  it,  permissible  by  the  law  of  the  former,  under  circumstances 
that,  had  the  mortgage  been  executed  in  the  latter  State  by 

German  Savings  Society  v.  Weber,  16  Mort.,  §§  260, 299-301 ;  Offutt  v.  Flagg, 

Wash.  95,  47  Pac.  R.  224;  Baldwin  v.  10  N.  H.  46;  Ferguson  v.  Clifford,  87 

Young,  47  La,  Ann.  1466, 17  S.  R.  883;  N.  H.  86;  Cobb  v.  Buswell,  37  Vt,  337; 

Walburn-Swenson  Co.  v.  Darrell,  49  Jones  v.  Taylor,  30  Vt.  42;  Taylor  v. 

La.  Ann.  1044,  22  S.  R.  310.  Boardman,  25  Vt.   581;    Ballard    v. 

Campbell  v.  Roddy,  supra,  was  fol-  Winter,  39  Conn.  179;  Langworthy 

lowed  and  applied  in  Palmateer  v.  v.  Little,  12  Cush.  (Mass.)  109;  Bank 

Robinson,  00  N.  J.  L.  433,  38  Atl.  R.  v.   Danforth,   14  Gray   (Mass.),  123; 

957,  in  a  case  arising  between  a  prior  Martin  v.  Hill,  12  Barb.  (N.  Y.)  631; 

conditional  vendor  of  the  realty  and  Kanaga  v.  Taylor,  7  Ohio  St.  134,  70 

a  subsequent  conditional  vendor  of  Am.  Dec.  62;    Wilson  v.  Carson,  12 

the  chattel.     It  is  distinguished  in  Md.  54;  Smith  v.  McLean,  24  Iowa, 

Warren  v.  Liddell,  110  Ala.  232,  20  322;  Simms  v.  McKee,  25  Iowa,  341; 

S.  R  89.  Feurt  v.  Rowell,  f>2  Mo.  524];  Gross  v. 

1  Campbell  v.  Roddy,  supra.  Jordan,  83  Me.  380,  22  Atl.  R.  250; 

2Keenan  v.  Stimson,  32  Minn.  377,  Woolley  v.  Geneva  Wagon  Co.,  59  N. 

20  N.  W.  R,  364  [citing  Jones,  Chat.  J.  L.  278,  35  Atl.  R.  789. 

534 


CH.  III.]  CONDITIONAL    SALE   OF   SPECIFIC   CHATTELS. 


[§  649. 


one  resident  therein,  would  have  made  it  invalid  as  against 
creditors  or  purchasers."  This  rule  has,  with  substantial  una- 
nimity, been  applied  to  cases  of  conditional  contracts  of  sale.1 


1 A  contract  made  in  New  Hamp- 
shire and  there  valid  will  be  held 
valid  in  Vermont,  though  not  re- 
duced to  writing  or  recorded  as  there 
required.  Dixon  v.  Blond  in,  58  Vt. 
689,  5  Atl.  R.  514.  To  same  effect: 
Barrett  v.  Kelley,  66  Vt.  515,  29  Atl. 
R.  8Q9;  Wooley  v.  Wagon  Co.,  supra; 
Gross  v.  Jordan,  supra;  Public  Parks 
Amusement  Co.  v.  Embree-McLean 
Carriage  Co.,  64  Ark.  29,  40  S.  W.  R. 
582;  Baldwin  v.  Hill,  4  Kan.  App.  168, 
46  Pac.  R.  329;  Harper  v.  People,  2 
Colo.  App.  177.  29  Pac.  R.  1040;  Cleve- 
land Mach.  Works  v.  Lang,  67  N.  H. 
348,  31  Atl.  R.  20. 

By  the  laws  of  Georgia  a  reserva- 
tion of  title  by  the  seller  until  the 
property  is  paid  for,  though  invalid 
as  against  third  persons  unless  the 
contract  is  reduced  to  writing,  ac- 
knowledged and  duly  recorded,  is 
valid  as  between  the  parties;  and  if 
the  purchaser,  holding  possession 
under  such  a  conditional  sale,  brings 
the  property  into  Alabama  and  there 
sells  it  to  a  third  person,  the  title  of 
the  latter  cannot  prevail  against  that 
of  the  original  vendor  under  the  laws 
of  Georgia.  Weinstein  v.  Freyer,  93 
Ala.  257,  9  S.  R.  285,  12  L.  R.  A.  700. 

By  the  laws  of  New  Jersey  a  con- 
ditional contract  of  sale  was  valid 
against  a  bona  fide  purchaser  from 
the  conditional  vendee.  By  the  law 
of  Pennsylvania  it  is  not  good  against 
such  a  bona  fide  purchaser,  though  it 
is  good  as  between  the  parties.  S. 
made  a  contract  for  the  purchase  of 
a  safe  with  the  Marvin  Safe  Co.  in 
Philadelphia  by  which  the  company 
reserved  title  till  the  safe  was  paid 


for.  The  safe  was  sent  to  New  Jer- 
sey, where  S.  resided.  He  there  sold 
it  to  N.,  a  bona  fide  purchaser.  In 
trover  by  the  safe  company  against 
N.  it  was  held  that  N.'s  rights  were 
determined  by  the  law  of  New  Jersey, 
but  that  he  acquired  only  such  title 
as  S.  had  when  the  property  was 
brought  into  New  Jersey,  and  that 
therefore  the  title  was  in  the  com- 
pany. Marvin  Safe  Co.  v.  Norton,  48 
N.  J.  L.  410,  7  Atl.  R.  418,  57  Am.  R. 
566.  (Compare  the  earlier  case  of 
The  Marina,  19  Fed.  R.  760,  in  the 
New  Jersey  district  court.) 

B.  made  a  contract  in  Michigan 
for  the  purchase  from  W.  of  a  piano. 
W.  reserved  title  till  paid  for.  B.  re- 
moved the  piano  to  Illinois  without 
W.'s  knowledge  or  consent  and  there 
mortgaged  it  to  C.  The  contract  was 
good  in  Michigan  against  even  a  bona 
fide  sub-vendee  though  not  recorded. 
Such  a  contract  was  not  good  in  Illi- 
nois against  a  bona  fide  purchaser. 
Held,  that  by  comity  the  law  of 
Michigan  should  prevail  and  that 
W.'s  right  was  superior  to  C.'s.  Wa- 
ters v.  Cox,  2  111.  App.  129.  But  com- 
pare with  Hervey  v.  Locomotive 
Works,  93  U.  S.  664  — an  Illinois  case, 
cited  below. 

In  Mershon  v.  Moors,  76  Wis.  502 
(Mershon  v.  Wheeler,  45  N.  W.  R.  95), 
the  court  gave  effect  to  an  unre- 
corded contract  made  either  in  Mas- 
sachusetts or  Connecticut  where  it 
was  valid,  though  such  contracts  in 
Wisconsin  were  required  to  be  re- 
corded. See  also  Collender  Co.  v. 
Marshall,  57  Vt.  232. 

Under  the  laws  of  Kansas  a  con- 


535 


650.] 


LAW    OF    SALE. 


[book  IT. 


650. 


But  where,  though  the  parties  reside  and  the 


contract  is  executed  in  one  State,  the  property  is  then  situated  in 
another  State,  or  is  brought  into  the  latter  State  in  pursuance 
and  by  virtue  of  the  contract,  the  law  of  the  latter  State  is 
usually  held  to  control  with  reference  to  questions  thereafter 
involving  it,  and  if  the  conditional  vendor  would  preserve  his 
rights  in  the  latter  State  he  must  comply  with  the  provisions 
of  its  laws.1 


tract  for  the  sale  of  personal  prop- 
erty by  which  possession  is  at  once 
given  to  the  vendees  and  the  title  is 
to  remain  in  the  vendors  until  pay- 
ment is  valid.  Where  property  thus 
sold  in  Kansas  was  removed  to  Colo- 
rado it  was  held  that  such  contract 
was  enforceable  in  Colorado,  though 
by  the  laws  of  that  State  compliance 
with  certain  conditions  was  requi- 
site to  make  such  a  contract  valid. 
Harper  v.  People,  2  Colo.  App.  177, 29 
Pac.  R.  1040,  distinguishing  Wilson 
v.  Voight,  9  Colo.  614,  13  Pac.  R.  726. 
In  this  case  the  court  said :  "  It  is  al- 
ways essential  to  ascertain  the  domi- 
cile of  the  parties,  the  lex  loci  con- 
tractus, and  the  situs  of  the  property. 
Wherever  these  unite  to  sustain  the 
validity  of  the  contract  it  may  be 
safely  asserted  that  it  is  enforceable 
in  the  courts  of  evei*y  State  where  a 
controversy  arises  over  the  title  to 
the  property.  These  elements  are 
present  in  this  suit.  All  the  parties 
to  the  contract  lived  in  Kansas.  By 
the  law  of  the  place  of  the  contract 
the  agreement  was  a  valid  one 
against  everybody.  The  property  was 
within  the  limits  of  that  jurisdiction 
when  the  contract  was  made.  Ac- 
cording to  the  weight  of  authority 
the  removal  of  the  property  into  an- 
other State,  whether  with  or  without 
the  consent  of  the  contracting  par- 
ties, will  not  invalidate  a  contract 


enforceable  when  and  where  it  was 
entered  into.  A  multitude  of  author- 
ities can  be  cited  upon  this  question, 
but  we  shall  content  ourselves  with 
the  citation  of  a  few  well-considered 
decisions  in  which  the  doctrine  has 
been  announced.  Mumford  v.  Canty, 
50  111.  370,  99  Am.  Dec.  526;  Ferguson 
v.  Clifford,  37  N.  H.  86;  Kanaga  v. 
Taylor,  7  Ohio  St.  134,  70  Am.  Dec. 
62;  Cobb  v.  Buswell,  37  Vt.  337; 
Smith  v.  McLean,  24  Iowa,  322;  Born 
v.  Shaw,  29  Pa.  St.  288,  72  Am.  Dec. 
633;  Crapo  v.  Kelly,  16  Wall.  (U.  S.) 
610;  Thuret  v.  Jenkins,  7  Mart.  (La.) 
318,  12  Am.  Dec.  508." 

1  In  Hervey  v.  Locomotive  Works, 
93  U.  S.  664,  it  is  said:  "It  was  de- 
cided by  this  court  in  Green  v.  Van 
Buskirk,  5  Wall.  307:  S.  C,  7  id.  139, 
that  the  liability  of  property  to  be 
sold  under  legal  process,  issuing  from 
the  courts  of  the  State  where  it  is 
situated,  must  be  determined  by  the 
law  there,  rather  than  that  of  the 
jurisdiction  where  the  owner  lives. 
These  decisions  rest  on  the  ground 
that  every  State  has  the  right  to  reg- 
ulate the  transfer  of  property  within 
its  limits,  and  that  whoever  sends 
property  to  it  impliedly  submits  to 
the  regulations  concerning  its  trans- 
fer in  force  there,  although  a  differ- 
ent rule  of  transfer  prevails  in  the 
jurisdiction  where  he  resides.  He 
has  no  absolute  right,  to  have  the 


536 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC   CHATTELS.  [§  G51. 


Y. 

Contracts  of  Sale  Subject  to  Other  Conditions. 

§  651.  In  general. —  It  is  entirely  competent  for  parties,  in 
making  contracts  of  sale,  to  subject  them  to  such  lawful  con- 
ditions as  they  deem  material,  and  where  they  have  done  so 


transfer  of  property,  lawful  in  that 
jurisdiction,  respected  in  the  courts 
of  the  State  where  it  is  found,  and  it 
is  only  on  a  principle  of  comity  that 
it  is  ever  allowed.  But  this  principle 
yields  when  the  laws  and  policy  of 
the  latter  State  conflict  with  those 
of  the  former."  In  this  case  an  agree- 
ment, called  a  lease,  but  held  by  the 
court  to  be  a  conditional  sale,  of  prop- 
erty to  be  taken  into  Illinois,  executed 
by  one  party  in  Rhode  Island  and  by 
the  other  in  New  York,  was  held  to 
be  inoperative  in  Illinois  as  against 
creditors  in  that  State  because  not 
recorded  under  the  chattel-mortgage 
act.  To  like  effect :  In  re  Legg  (1899), 
96  Fed.  Rep.  336  [citing  Hart  v.  Man- 
ufacturing Co.,  7  Fed.  R.  543;  Pitts- 
burg Locomotive  Works  v.  Keokuk 
Bank,  19  Fed.  Cas.  785;  Heryford  v. 
Davis,  102  U.  S.  235;  Chicago  Ry. 
Equipment  Co.  v.  Merchants'  Bank, 
136  U.  S.  268,  10  Sup.  Ct.  R.  999;  Mo 
Gourkey  v.  Railway  Co.,  146  IT.  S. 
536,  13  Sup.  Ct.  R.  170]. 

In  Cunningham  v.  Cureton,  96  Ga. 
489,  23  S.  E.  R.  420,  it  appeared  that 
the  vendees,  who  resided  in  Georgia, 
went  into  Tennessee  to  purchase  cer- 
tain chattels  and  there  gave  their 
notes  for  them,  which  notes  con- 
tained a  clause  reserving  title  in  the 
vendoi-s  until  payment.  The  chattels 
were  then  shipped  to  the  vendees  in 
Georgia.  The  law  of  Georgia  re- 
quired such  contracts  to  be  attested 
and  recorded,  but  the  law  of  Tennes- 
see had  no  such  requirement.     The 


Georgia  law  was  not  complied  with. 
In  a  conflict  between  the  sellers  and 
the  holders  of  liens  acquired  in  Geor- 
gia, it  was  contended  that  the  case 
was  to  be  governed  by  the  law  of 
Tennessee,  but  the  Georgia  court 
said:  "  When  the  property  is  brought 
into  this  State  the  requirements 
which  our  law  imposes  for  the  bene- 
fit of  third  persons,  as  to  the  attesta- 
tion and  recording  of  such  contracts, 
are  not  dispensed  with  by  the  fact 
that  it  was  purchased  or  is  to  be  paid 
for  in  another  State." 

Though  the  contract  may  have 
been  dated  in  Massachusetts,  yet  if 
delivered  in  Maine,  relating  to  prop- 
erty in  Maine,  it  is  to  be  governed  by 
the  laws  of  Maine.  Eolt  v.  Knowl- 
ton,  86  Me.  456,  29  Atl.  R.  1113. 

The  law  of  New  Jersey  applies  to 
a  contract  of  sale  made  in  New  York 
of  property  to  be  delivered  to  and 
held  by  the  purchaser  in  New  Jersey. 
Knowles  Loom  Works  v.  Vacher,  57 
N.  J.  L.  490,  31  Atl.  R.  306, 33  L.  R.  A. 
305. 

The  law  of  Connecticut  applies  to 
a  contract  of  sale  made  and  the  prop- 
erty delivered  in  New  York,  but  in 
contemplation  that  the  property  is 
to  be  taken  to  Connecticut,  where 
the  contract  is  to  be  performed. 
Beggs  v.  Bartels  (1900),  —  Conn.  — , 
46  Atl.  R.  874. 

But  in  a  late  case  in  New  Hamp- 
shire it  was  held  that  a  contract  of 
conditional  sale,  made  in  Massachu- 
setts by  parties  there  resident,  con- 


537 


§  652.] 


LAW   OF    SALE. 


[BOOK    II. 


the  title  will  not  pass  until  the  condition  is  performed.1  It  is 
not  practicable,  however,  to  attempt  to  discuss  all  such  possi- 
ble contracts.  There  are,  on  the  other  hand,  certain  kinds  of 
contracts,  frequently  entered  into,  which  from  their  nature  are 
necessarily  subject  to  conditions  growing  out  of  the  essential 
character  of  the  contract  itself,  and  the  most  important  of  these 
Avill  now  be  considered. 

One  of  the  most  important  of  these  is  the  contract  for  the  — 

1.  Sale  of  Goods  "  to  Arrive." 

§  652.  Such  contracts  conditioned  upon  the  arrival  of  the 
goods.—  "  A  sale  to  arrive,"  it  is  said  in  one  case,2  is  "condi- 
tional, and  if  the  article  contracted  for  does  not  arrive,  either 


cerning  a  chattel  there  situated  and 
valid  by  its  laws,  may  be  enforced  in 
New  Hampshire,  though  the  statute 
of  that  State  has  not  been  complied 
with;  and  the  fact  that  the  parties,  at 
the  time  the  contract  was  made,  con- 
templated that  the  property  should 
be  removed  to  New  Hampshire  does 
not  alter  the  rule.  Cleveland  Mach. 
Works  v.  Lang  (1892),  67  N.  H.  348, 
31  Atl.  R.  20,  68  Am.  St,  R.  675.  To 
same  effect:  Dorntee  Casket  Co.  v. 
Gunnison  (1898),  69  N.  H.  297,  45  Atl. 
R.318. 

Where  the  seller  in  Maine  sold  to 
a  New  Hampshire  resident  a  chattel 
which  was  removed  to  New  Hamp- 
shire, and  the  statute  of  Maine  re- 
quired the  contract,  when  executed 
by  a  non-resident,  to  be  recorded 
where  the  property  was  when  the 
contract  was  made  (i.  e.,  in  Maine), 
but  it  was  not  so  recorded  in  Maine, 
the  contract  will  not  be  valid  in  New 
Hampshire  against  a  subsequent 
up  .it  gagee  of  the  goods  in  that  State. 
Davis  v.  Osgood  (1898),  69  N.  H.  427, 
44  Atl.  R  432. 

1  Thus,  for  example,  an  agreement 
in  a  contract  for  the  sale  of  a  saloon. 


that  if  no  license  should  be  granted 
there  should  be  no  sale,  shows  that 
the  title  is  not  to  pass  until  the 
license  is  procured.  Kost  v.  Reilly 
(1892),  62  Conn.  57,  24  Atl.  R.  519. 
While,  on  the  other  hand,  where  one 
agrees  that  he  will  purchase  a  planter 
if  it  did  not  "  break  all  to  the  devil " 
before  he  got  through  using  it,  he  be- 
comes the  purchaser  and  is  liable  to 
pay  if  the  planter  does  not  break  as 
so  stipulated.  Norton  v.  Hummel 
(1887),  22  111.  App.  194. 

A  stipulation  in  an  order  for  a 
harvester  that  "if  my  crops  are  a 
failure,  and  I  do  not  need  a  ma- 
chine," justifies  the  buyer  in  rescind- 
ing if  those  crops  fail  for  which  he 
would  need  such  a  harvester,  though 
his  other  crops  may  be  good.  Mc- 
Cormick  Co.  v.  Williams  (1896),  99 
Iowa,  601,  68  N.  W.  R.  907. 

2  Neldon  v.  Smith,  36  N.  J.  L.  148, 
To  same  effect:  Shields  v.  Pettee,  2 
Sandf.  (N.  Y.)  262;  Benedict  v.  Field, 
4  Duer  (N.  Y.),  154;  Dike  v.  Reit- 
linger,  23  Hun  (N.  Y.),  241;  Russell  v. 
Nicoll,  3  Wend.  (N.  Y.)  112,  20  Am. 
Dec.  670;  Lovatt  v.  Hamilton,  5  M. 
&  W.  639;  Stockdale  v.  Dunlop,  6  M. 


538 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  653. 

from  the  vessel's  being  lost  or  other  cause  by  accident,  and 
without  any  fraud  or  fault  of  the  vendor,  the  contract  is  at  an 
end.  The  contract  is  executory  and  does  not  pass  the  prop- 
erty in  the  goods  to  arrive.  It  is  merely  an  agreement  for  the 
sale  and  delivery  of  the  articles  named  at  a  future  period 
when  they  shall  arrive.  It  is  in  the  nature  of  a  condition  and 
not  a  warranty." 

Stipulations  in  such  contracts  as  to  the  time  of  arrival  are 
therefore  construed  as  fixing  a  limit  beyond  which  the  contract 
is  not  to  continue,  rather  than  as  warranties  that  the  goods 
shall  arrive  within  that  time.1  The  vendor  is  not  liable  for  the 
non-delivery  of  the  goods  until  their  arrival,  and  unless  they 
arrive  within  the  time  specified  the  vendor  is  not  bound  to  de- 
liver nor  the  vendee  to  receive  them.2  So,  if  the  contract  be 
entire,  the  vendor  is  not  bound  to  deliver  nor  the  vendee  to 
receive  a  part  of  the  goods  only  which  arrives  within  the  pe- 
riod fixed.3 

§  653.  Contracts  limiting  time  of  shipment.— It  is  entirely 
competent,  of  course,  for  the  parties  to  limit  the  time  within 
which  the  goods  shall  be  shipped,  and  when  the  time  is  so  lim- 
ited it  becomes  a  condition  precedent  that  they  shall  be  shipped 
within  the  time  agreed  upon;  and  if  not  complied  with,  both 
parties  are  released  from  their  respective  obligations  to  deliver 
and  receive.4 

&  W.  224;  Johnson  v.  Macdonald,  9  other  words  showing  a  contrary  in- 

M.  &  W.  600;  Eogers  v.  Woodruff,  23  tent,  contingent  upon  its  arrival," 

Ohio  St.  632,  13  Am.  R.  276.  citing  many  of  the  cases  supra. 

i  Russell  v.  Nicoll,  supra;  Alewyn  2Hill  v.  Blake  (1884),  97  N.  Y.  216. 

v.  Pryor,  R.  &  M.  406.     In  Rogers  v.  3  Russell  v.  Nicoll,  supra. 

Woodruff,  supra,  it  is  said:  "It  has  4 Alexander  v.  Vanderzee,  L.  R.  7 

uniformly  been  held  that  contracts  C.  R  530;  Shand  v.  Bowes,  1  Q.  B. 

of  this  description  —  for  the  sale  of  Div.  470;  S.  C,  2  Q.  B.  Div.  112;  s.  c. 

goods  to  arrive  —  are  conditional,  the  sub  nom.  Bowes  v.  Shand.   2  A  pp. 

words  '  to  arrive,'  or  other  equivalent  Cas.  455. 

words,  not  importing    a   warranty  Where  the  contract  was  for  five 

that  the  goods  will  arrive,  and  the  hundred  tons  of  rails  to  be  shipped 

obligation  to  perform  the  contract  "from  the  other  side,  January  or 

by  an  actual  transfer  of  the  property  February  or  March,  seller's  option," 

being,  therefore,  in  the  absence  of  the  court  said:  "  It  is  the  settled  rule 

539 


§§  654,  655.] 


LAW    OF    SALE. 


[book  IT. 


In  construing:  agreements  of  this  nature  it  seems  to  be  dc- 
termined  that  the  expressions  in  the  contract,  "  to  be  shipped  " 
or  "shipment"  within  a  certain  time,  have  reference,  in  the 
absence  of  usage  to  the  contrary,  to  the  time  when  the  goods 
shall  be  placed  on  board,  and  not  to  the  time  when  the  ship- 
ment shall  actually  be  completed.1 


654. 


Giving  notice  of  name  of  ship. —  It  is  a  common 


stipulation  in  these  contracts  that  the  vendor  shall  give  the 
vendee  notice  of  the  name  of  the  ship  on  which  the  goods  are 
expected  as  soon  as  it  becomes  known  to  him,  and  a  strict  com- 
pliance with  this  requirement  is  a  condition  precedent  to  his 
right  to  enforce  the  contract.2 

§  655. Classification  of  the  cases. —  Mr.  Benjamin,  after 

reviewing  the  English  cases  in  which  the  question  has  been 
much  more  frequently  considered  than  in  the  American  cases, 
classifies  the  decisions  as  follows: 


that  in  a  case  like  the  present  the 
date  of  shipment  is  a  material  ele- 
ment in  the  identification  of  the 
property  (Hill  v.  Blake,  97  N.  Y.  216; 
Tobias  v.  Lissberger,  105  id.  404).  It 
was  not  five  hundred  tons  of  rails 
generally  that  were  the  subject  of 
the  contract,  but  a  specific  quantity 
shipped  from  the  other  side  during 
the  three  named  months,  and  unless 
such  were  tendered  the  contract  was 
not  performed.  The  offer  of  other 
rails  would  impose  no  obligation 
upon  the  purchaser."  Clark  v.  Fey 
(1890),  131  N.  Y.  470,  24  N.  E.  R.  703. 

The  destruction  of  the  vessel 
named  before  the  date  of  shipment 
terminates  the  contract.  Nickoll  v. 
Ashton,  1 1900]  2  Q.  B.  298. 

1  Bowes  v.  Shand,  sujyra.  A  con- 
tract to  ship  goods  by  railroad  on  a 
certain  day  is  satisfied  by  putting 
them  on  the  car  on  that  day.  al- 
though the  carrier  does  not  send  the 


car  forward  until  the  following  day. 
Clark  v.  Lindsay  (1896),  19  Mont.  1. 
47  Pac.  R.  102. 

2  Benjamin  on  Sales,  §  588;  Busk  v. 
Spence,  4  Camp.  329;  Graves  v.  Legg, 
9  Ex.  709.  But  where  the  seller  gave 
the  name  of  the  ship  as  the  "  Chris- 
topher" and  the  goods  arrived  on 
the  "St.  Christopher,"  it  was  held 
that  the  refusal  of  the  buyer  to  re- 
ceive the  goods  on  that  account  was 
unwarranted.  Smith  v.  Pet  tee  (1877), 
70  N.  Y.  13.  So  where  there  was  a 
contract  for  goods  to  be  shipped  from 
the  Philippines  in  a  certain  vessel, 
provided  that  if  she  was  by  any  ac- 
cident unable  to  load  and  no  other 
steamer  could  be  procured  the  con- 
tract was  to  be  void,  it  was  held  not 
to  preclude  reshipment  by  another 
vessel  at  an  intermediate  point  due 
to  an  accident  to  the  original  vessel. 
Harrison  v.  Fortlage  (1896),  161  U.  S. 
57. 


540 


CH.  III.]  CONDITIONAL    SALE    OF   SPECIFIC    CHATTELS.  [§  656. 

First.  "Where  the  language  is  that  goods  are  sold  "on  arrival 
per  ship  A  or  ex  ship  A,"  or  "  to  arrive  per  ship  A  or  ex  ship  A" 
(for  these  two  expressions  mean  precisely  the  same  thing),  it 
imports  a  double  condition  precedent,  viz.,  that  the  ship  shall 
arrive,  and  that  the  goods  sold  shall  be  on  board  on  her  arrival. 

Secondly.  "Where  the  language  asserts  the  goods  to  be  on 
board  of  the  vessel  named,  as  "  1,170  bales  now  on  passage,  and 
expected  to  arrive  per  ship  A,"  or  other  terms  of  like  import, 
there  is  a  warranty  that  the  goods  are  on  board,  and  a  single 
condition  precedent,  to  wit,  the  arrival  of  the  vessel. 

Thirdly.  The  condition  precedent  that  the  goods  shall  ar- 
rive by  the  vessel  will  not  be  fulfilled  by  the  arrival  of  goods 
answering  the  description  of  those  sold,  but  not  consigned  to 
the  vendor  and  with  which  he  did  not  affect  to  deal;  but 
semble,  the  condition  will  be  fulfilled  if  the  goods  which  arrive 
are  the  same  which  the  vendor  intended  to  sell,  in  the  expecta- 
tion, which  turns  out  to  be  unfounded,  that  they  would  be  con- 
signed to  him. 

Fourthly.  Where  the  sale  describes  the  expected  cargo  to  be 
of  a  particular  description,  as  "400  tons  of  Aracan  Necrensie 
rice,"  and  the  cargo  turns  out  on  arrival  to  be  rice  of  a  differ- 
ent description,  and  neither  party  is  bound  by  the  bargain. 

2.  Sale  of  Goods  "  to  le  Shipped." 

§656.  Such  contracts  conditional. —  Similar  in  many  re- 
spects to  the  contract  for  the  sale  of  goods  "  to  arrive,"  and 
often  associated  with  it,  is  the  contract  for  the  sale  of  goods 
"  to  be  shipped."  Such  contracts,  already  slightly  touched 
upon  in  the  preceding  subdivision,  however,  are  less  conditional 
than  the  former,  and  the  condition,  like  many  others  to  be 
hereafter  noticed,  is  rather  one  relating  to  the  performance  of 
the  contract  than  one  which  goes  to  the  discharge  of  both  par- 
ties from  it.  As  will  be  seen  hereafter,  whatever  in  executory 
contracts  goes  to  the  matter  of  the  identification  or  description 
of  the  goods  to  be  supplied,  or  the  time,  place,  quantity  or  man- 
ner of  supplying  them,  is  usually  to  be  deemed  a  condition 

541 


§§  657-659.]  law  or  sale.  [book  ii. 

precedent  to  the  buyer's  liability ;  —  giving  the  buyer  the  op- 
tion to  reject  the  goods,  or  to  waive  the  default  and  accept  a 
substituted  performance  if  he  will.1  It  is  deemed  most  con- 
venient, therefore,  to  leave  this  question  until  the  subject  of 
delivery  is  reached,2  and  to  confine  attention  here  to  those 
conditions  less  intimately  connected  with  the  mere  matter  of 
performance. 

3.  Sale  on  Approval. 

§  657.  Sale  if  goods  are  approved. —  Contracts  are  not  un- 
common in  pursuance  of  which  goods  are  delivered  "on  trial," 
or  "  on  approval,"  to  be  bought  and  paid  for  if  the  prospective 
purchaser  approves  them,  and,  if  not,  to  be  returned. 

§  658.  Title  and  risk  pending  approval. —  Such  a  transac- 
tion does  not  constitute  a  present  sale,  and  the  title  does  not 
pass  until  in  some  manner,  either  expressly  or  by  implication, 
this  necessary  approval  is  manifested.3  With  the  title  also  re- 
mains the  risk  of  loss  or  injury  not  caused  by  the  buyer's 
default.4  Whether  the  sale  is  absolute  or  on  approval,  in  a 
doubtful  case,  is  a  question  for  the  jury.5 

§650.  Within  what  time  option  exercised. —  Where  the 
terms  of  the  contract  fix  the  time  within  which  the  option  is 
to  be  exercised,  the  contract  will,  of  course,  govern;  but  where 
no  time  is  so  fixed  the  law  will  require  the  determination  to  be 
made  within  a  reasonable  time.6 

1  See  post,  §  1205  et  seq.  4  Thus  if  a  horse  sold  upon  approval 

2  See  jjost,  §  1116  et  seq.  dies  without  the  fault  of  the  buyer 

3  Hunt  v.  Wyman  (1868>,  100  Mass.  before  approval  and  before  the  ex- 
198;  Dando  v.  Foulds  (1884),  105  Pa.  piration  of  the  time  limited,  the  loss 
St.  71;  Wartman  v.  Breed  (1875),  117  falls  on  the  seller.  Elphick  v.  Barnes 
Mass.  18;  Fairfield  v.  Madison  Mfg.  (1880),  5  C.  P.  Div.  301. 

Co.  (1875),  38  Wis.  346;  Hall  &  Brown  5  Reber  v.  Schitler  (1891),  141  Pa.  St, 

Mach.  Co.  v.  Brown  (1891\  82  Tex.  640,  21  Atl.  R.  736. 

469,    17  S.  W.   R.  715;    Mowbray  v.  e  Washington  v.  Johnson  (1846),  7 

( lady  (1^75),  40  Iowa,  604;  Glasscock  Humph.   (Tenn.)  468;     Hickman    v. 

v.   Ilazell   (1891).  109  N.  C.  145,  13  S.  Shimp  (1885),  109  Pa.  St.  16. 

E.  R.  789. 

542 


CH.  III.]  CONDITIONAL  SALE  OF  SPECIFIC    CHATTELS. 


G60. 


§  660.  Effect  of  failure  to  return  within  time  required. — 

In  either  case,  while  the. mere  failure  to  return  the  goods  within 
the  time  required  may  not  be  per  se  an  election  to  purchase,1 
it  is  still  such  evidence  that,  if  unexplained,  a  conclusive  elec- 
tion may  be  found.2     Of  course,  in  these  cases,  there  can  ordi- 


1  Hunt  v.  Wyman,  supra. 

2  Washington  v.  Johnson,  supra; 
Butler  v.  School  District  (1892),  149 
Pa.  St.  351;  Hickman  v.  Shimp, 
supra;  Stutz  v.  Coal  Co.,  131  Pa.  St, 
267. 

In  Aultman  v.  Theirer  (1872),  34 
Iowa,  272,  a  buyer  of  a  reaper  was  to 
try  the  machine  for  a  certain  period 
and  give  notice  if  it  failed  to  work 
as  warranted.  The  buyer  gave  the 
notice  as  required,  but  continued  to 
use  the  machine.  Held,  that  he  lost 
his  right  to  return  it,  but  could  still 
reduce  the  recovery  by  the  damages 
sustained  by  him. 

In  Turner  v.  Machine  Co.  (1893),  97 
Mich.  166,  56  N.  W.  R.  356,  plaintiff 
sold  certain  machinery  to  defendant 
on  trial,  trial  to  cover  thirty  days. 
If  satisfactory  defendant  was  to  pay 
for  it.  He  failed  to  give  notice  at 
the  expiration  of  the  time,  and  it 
was  held  that  such  failure  consti- 
tuted an  acceptance. 

In  Columbia  Rolling  Co.  v.  Beckett 
Foundry  Co.  (1893),  55  N.  J.  L.  391,  26 
AtL  R.  888,  it  was  held  that  where 
goods  are  sold  subject  to  approval  it 
is  necessary  for  the  purchaser,  unless 
he  approves,  to  express  disapproval 
within  a  reasonable  time,  in  the  ab- 
sence of  which  the  seller  may  sue 
and  recover,  the  failure  constitut- 
ing either  an  approval  or  a  least  at 
waiver. 

In  Fairfield  v.  Madison  Mfg.  Co. 
(1875),  38  Wis.  346,  plaintiff  agreed  to 
take  one  of  defendant's  machines, 
give  it  a  fair  trial,  and  notify  defend- 


ant if  it  failed  to  give  satisfaction. 
The  machine  was  to  be  settled  for 
after  the  trial,  and  taken  back  if  it 
could  not  be  made  to  work:  but  if 
used  more  than  two  days  the  war- 
ranty should  be  considered  fulfilled. 
The  machine  did  not  work  and  de- 
fendant was  notified,  but  plaintiff 
was  prevailed  upon  to  keep  the  ma- 
chine with  the  promise  that  it  would 
be  fixed.  It  was  kept  and  used  part 
of  two  seasons,  but  was  nearly  use- 
less. Held,  that  title  had  not  passed 
when  plaintiff  first  notified  defend- 
ant that  the  machine  did  not  work. 
But  after  plaintiff  kept  the  machine 
so  long  it  will  be  presumed  that  he 
elected  to  keep  it  and  sue  for  breach 
of  warranty. 

In  Keeler  v.  Jacobs  (1894),  87  Wis. 
545,  58  N.  W.  R.  1107,  plaintiffs  let  the 
defendant  have  a  machine  on  trial 
until  satisfied  with  it,  and  if  not  sat- 
isfied with  it  he  might  return  it.  De- 
fendant was  not  satisfied  and  noti- 
fied plaintiffs,  but  he  was  induced 
to  keep  it  longer  under  the  promise 
that  plaintiffs'  agent  would  write  to 
plaintiffs  and  see  what  could  be  done. 
Nothing  was  done.  Held,  that  the 
question  whether  defendant  had  kept 
the  machine  more  than  a  reasonable 
time  was  for  the  jury. 

In  Ellis  v.  Mortimer  (1805),  1  Bos. 
&  P.  N.  R  257,  plaintiff  offered  de- 
fendant a  horse  at  a  certain  price, 
defendant  to  try  it  for  a  month  and 
pay  the  price  if  he  liked  the  horse  at 
the  price.  At  the  end  of  two  weeks 
defendant  told  plaintiff  that  he  liked 


543 


|§  661,  062.] 


LAW    OF    SALE. 


[BOOK   II. 


narily  be  no  election  until  an  opportunity  for  inspection  or 
examination  has  been  afforded.1 

§661.  Necessity  for  notice  of  disapproval. —  Ordinarily, 
and  in  the  absence  of  a  stipulation  to  the  contrary,  the  party 
receiving  the  goods  must,  in  the  event  of  his  disapproval,  re- 
turn them  or  offer  to  return  them  or  give  notice  of  his  disap- 
proval.2 But  the  parties  may,  by  their  express  or  implied 
agreements,  dispense  with  this  requirement,  and  throw  upon 
the  person  delivering  the  duty  of  ascertaining  whether  the 
goods  are  approved  or  not.3  If  the  duty  in  this  respect  is  not 
made  clear  by  the  terms  of  the  agreement,  it  becomes  a  ques- 
tion of  fact  for  the  jury  to  determine  whether  notice  was  re- 
quired from  the  receiver  or  not.4 

§662.  How  notice  to  be  given. —  In  a  case5  in  which  the 
defendants  were  bound  by  their  contract  to  give  notice  of  their 


the  horse  but  not  the  price,  where- 
upon plaintiff  asked  him  to  return 
the  horse.  But  defendant  kept  it 
ten  days  longer.  Held,  that  he  was  at 
liberty  to  keep  the  horse  for  a  month 
if  he  chose. 

i  Wilson  v.  Stratton  (1860),  47  Me. 
120,  citing  Crane  v.  Roberts,  5  Me. 
419;  McCarren  v.  McNulty,  7  Gray 
(Mass.),  139;  Grout  v.  Hill,  4  id.  331. 

In  Hunt  v.  Wyman,  supra,  a  horse 
taken  upon  trial  had  received  seri- 
ous injury  without  the  fault  of  the 
bailee  before  he  had  a  chance  to  try 
him,  nor,  on  account  of  the  injury, 
could  the  horse  be  returned  within 
the  time  specified.  Held,  not  a  sale. 
To  like  effect:  Lyons  v.  Stills  (1896), 
97  Tenn.  514,  37  S.  W.  E.  280. 

In  Kahn  v.  Klabunde  (1880),  50 
Wis.  235,  it  was  held  that  where  A 
takes  to  his  own  home  a  horse  be- 
longing to  B,  intending  to  purchase 
it,  if  satisfactory,  with  an  under- 
standing that  he  is  to  use  it  by  way 


of  trial  until  a  specified  time,  and 
then,  if  not  satisfied,  bring  it  back  to 
B,  or,  if  too  busy  for  that,  to  let  it 
stand  unused  till  B  comes  for  it,  and 
A  continues  to  use  the  horse  after 
the  time  so  fixed,  but  then  refuses 
to  buy  and  offers  to  return  it,  this  is 
evidence  for  the  jury  on  the  question 
whether  A,  at  the  time  so  fixed,  had 
determined  to  retain  the  horse,  and 
is  therefore  liable  for  the  price,  but 
it  is  not  conclusive  evidence. 

2  Dewey  v.  Erie  Borough  (1850),  14 
Pa.  St.  211,  53  Am.  Dec.  533. 

3  In  Gibson  v.  Vail  (1881),  53  Vt.  476, 
it  was  found  that  the  seller  was  to 
come  and  ascertain  whether  the 
other  party  was  satisfied.  Such  was 
also  the  fact  in  Smalley  v.  Hendrick- 
son  (1862),  29  N.  J.  L.  371. 

^Wartman  v.  Breed  (1875%  117 
Mass.  18. 

5  Dewey  v.  Erie  Borough  (1850),  14 
Pa.  St.  211,  53  Am.  Dec.  533. 


544 


CH.  III.]       CONDITIONAL    SALE  OF  SPECIFIC   CHATTELS.       [§§  6G3,  GQ4:. 

dissatisfaction  to  the  plaintiff,  Gibson,  C.  J.,  said :  "  They  were 
not  bound  to  follow  the  plaintiff  to  a  foreign  country;  but  if 
foreign  residence  had  been  alleged,  they  would  have  been  bound 
to  prove  it.  If  his  residence  was  unknown,  they  were  bound 
to  prove  that  they  had  attempted  to  discover  it.  If  it  was 
known  to  be  in  a  sister  State,  they  were  bound  to  prove  that 
they  had  attempted  to  reach  him  through  the  postoffice.  But 
there  was  not  a  spark  of  evidence  to  prove  that  any  effort  had 
been  made  whatever,  and  the  contract  had  become  absolute." 

4.  Sale  if  Satisfactory  to  Buyer. 

§  663.  Sales  if  buyer  is  satisfied. —  Similar  to  the  questions 
involved  in  the  last  sections  are  those  which  arise  where  the 
contract  is  that  the  buyer  shall  purchase  if  the  goods  are  satis- 
factory. It  is  entirely  competent  for  the  parties  to  agree  that 
the  transaction  shall  not  constitute  a  sale  unless  the  goods  are 
satisfactory,  and  where  such  is  the  contract  no  sale  takes  place 
until  the  condition  is  performed.1 

§  664.  Who  is  to  be  satisfied. —  In  many  of  the  cases  it  is 
expressly  stipulated  that  the  sale  shall  not  result  unless  the 
buyer  is  satisfied;  but  this  express  stipulation  is  not  necessary. 
"Where  a  proposition  of  sale  is  made  to  a  person  upon  the  con- 

1  It  is  of  course  essential  that  this  even  though  it  did  good  work.   Piano 

shall  really  be  the  condition.    Thus,  Mfg.  Co.  v.  Ellis  (1888),  68  Mich.  101, 

in  Clark  v.  Rice  (1881),  46  Mich.  308,  35  N.  W.  R.  841. 

9  N.  W.  R  427,  where  the  contract  So,  a  contract  that  a  machine  may- 
was  that  there  should  be  a  sale  "  if,  be  returned  if  it  does  not  do  good 
on  trial  of  thirty  days,  the  machine  is  work  will  not  justify  a  return  if  it 
satisfactory,  or  does  what  is  claimed  does  good  work,  unless  the  return  be 
for  it,"  it  was  held  that  the  sale  was  assented  to  by  the  seller.  Manny  v. 
absolute  if  the  machine  did  what  Glendinning  (1862),  15  Wis.  50.  But 
was  claimed  for  it  whether  the  pur-  a  stipulation  that  a  machine  may  be 
chaser  was  satisfied  or  not.  But  where  returned  by  the  purchaser  if  it  does 
the  stipulation  was  that  the  machine  not  suit  him  and  answer  his  purpose 
"  is  to  do  good  work  and  give  satisfao  gives  him  the  right  to  return  it  if  he 
tion,"  it  was  held  that  the  require-  is  not  suited,  even  though  the  ma- 
ment  to  give  satisfaction  was  an  in-  chine  might  answer  his  purpose, 
dependent  one,  and  that  there  was  Goodrich  v.  Van  Nortwick  (1867),  43 
no  sale  unless  it  gave  satisfaction,  I1L  445. 
35                                              545 


§§  665,  6Q6.~\  law  of  sale.  [book  ii. 

dition  that  he  need  not  purchase  unless  the  article  is  satisfac- 
tory, the  necessary  inference,  even  in  the  absence  of  an  express 
statement,  is  that  he  need  not  buy  unless  the  article  is  satis- 
factory to  him.1 

§665.  If  vendee  not  satisfied  there  is  no  sale.— In  such 
cases,  if  the  vendee  is  in  fact  not  satisfied,  there  is  no  sale.  It 
is  not  enough  that  he  ought  to  be  satisfied,  or  that  the  article 
would  be  satisfactory  to  a  reasonable  man,  or  that  the  court  or 
jury  deem  the  article  satisfactory.2  The  contract  is  that  the 
article  shall  be  satisfactory  to  the  vendee  himself,  and  not  to 
some  one  else. 

§  666.  Reasons  for  his  dissatisfaction.— To  assign  reasons 
for  one's  dissatisfaction  is  not  always  easy,  nor,  in  these  cases, 
is  it  ordinarily  necessary.  In  many  cases  the  question  is  one 
appealing  to  taste,  sentiment  or  artistic  sensibility,  rather  than 
reason ;  and  in  such  cases,  frequently,  no  reason  can  be  assigned, 
and  none,  therefore,  is  required.  If  the  undertaking  is,  for  in- 
stance, to  supply  a  portrait,  a  photograph,  a  bust,  a  suit  of 
clothes,  a  musical  instrument,  or  an  article  of  furniture,  which 
shall  be  satisfactory  to  the  other  party,  "  the  buyer  may  reject 
it  without  assigning  any  reason  for  his  dissatisfaction.  In  such 
a  case  the  law  cannot  relieve  against  the  folly  of  the  vendor 
by  inquiring  whether  the  dissatisfaction  of  the  vendee  was 
based  upon  reasonable  grounds  or  not.  It  is  even  doubtful 
whether  it  can  inquire  into  the  good  faith  of  the  vendee's  de- 
cision."3 

i  Singerly  v.  Thayer  (1885),  108  Pa.  312,  18  S.  E.  R.  591,  and  many  other 

St.  291, 2  Atl.  R.  230;  Adams  Radiator  cases  cited  in  the  following  notes. 

Works  v.  Schnader  (1893),  155  Pa.  St.  3  Per  Brown,  J.,  in  Campbell  Print- 

39  l,  26  Atl.  R.  745.    See  also  McCar-  ing  Press  Co.  v.  Thorp  (1888),  36  Fed. 

ren  v.  MoNulty,  7  Gray  (Mass.),  139.  R.  414. 

2  See  Singerly  v.   Thayer,   supra;  In  McCarren  v.  McNulty  (1856),  7 

Brown  v.  Foster,  113  Mass.  136;  Za-  Gray  (Mass.),  139,  the  contract  was 

leski  v.  Clark,  44  Conn.  218;  Gibson  for  the  construction  of  a  book  case, 

v.  Cranage,  39  Mich.  49;  Palmer  v.  which  the  plaintiff  agreed  to  finish 

Banfield,  86  Wis.  441,  56  N.  W.  R.  "in  a  good,  strong  and  workmanlike 

1090;  Osborne  v.  Francis,  38  W.  Va.  manner,  to  the  satisfaction  of"  one 

546 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  667. 

§  667.  Duty  to  test  goods. —  In  the  cases  mentioned  in  the 
preceding  section,  the  case  cannot  ordinarily  be  made  clearer 
by  any  test.  It  would,  of  course,  be  the  duty  of  the  buyer  to 
examine  the  article  and  not  to  reject  it  unseen ;  but  there  could 


of  the  defendants.  It  was  held  that 
unless  the  plaintiff  showed  that  the 
work  was  satisfactory  to  or  accepted 
by  the  defendant  in  question  he  could 
not  maintain  the  action. 

Hoffman  v.  Gallaher  (1875),  6  Daly 
(N.  Y.),  42,  was  the  case  of  a  contract 
to  paint  the  defendant's  portrait,  it 
being  agreed  that  the  picture  should 
be  referred  to  the  defendant's  friends, 
and  if  thej"  thought  it  a  good  likeness 
he  would  take  it,  otherwise  he  would 
not.  The  court  held  that  he  was  not 
bound  to  take  it  unless  his  friends 
liked  it,  and  that  it  was  error  to  in- 
troduce the  portrait  in  evidence  and 
show  it  to  the  jury  that  they  might 
judge  of  the  portrait  as  a  likeness  of 
the  defendant. 

In  the  case  of  Zaleski  v.  Clark 
(1876),  44  Conn.  218,  26  Am.  R.  446, 
the  plaintiff,  who  was  a  sculptor, 
agreed  to  make  for  the  defendant 
a  bust  of  her  deceased  husband, 
stipulating  that  she  was  not  bound 
to  take  it  unless  she  was  satisfied 
with  it.  The  bust  was  completed, 
.was  a  fine  piece  of  workmanship  and 
an  accurate  likeness,  but  from  the 
very  nature  of  the  materials  was  des- 
titute of  lifedike  expression  and  color. 
The  defendant  was  not  satisfied  with 
it,  and  would  not  accept  or  pay  for 
it;  but  her  dissatisfaction  was  based 
upon  grounds  applicable  to  all  busts. 
The  supreme  court  said:  "Courts  of 
law  must  allow  parties  to  make  their 
own  contracts,  and  can  enforce  only 
such  as  they  actually  make.  Whether 
the  contract  is  wise  or  unwise,  rea- 
sonable or  unreasonable,  is  ordinarily 


an  immaterial  inquiry.  ...  In 
this  case  the  plaintiff  undertook  to 
make  a  bust  which  should  be  satis- 
factory to  the  defendant.  The  case 
shows  that  she  was  not  satisfied  with 
it.  The  plaintiff  has  not  yet  then  ful- 
filled his  contract.  It  is  not  enough 
to  say  that  she  ought  to  be  satisfied 
with  it,  and  that  her  dissatisfaction 
is  unreasonable.  She,  and  not  the 
court,  is  entitled  to  judge  of  that. 
The  contract  was  not  to  make  one 
that  she  ought  to  be  satisfied  with, 
but  to  make  one  that  she  icoirfcl  be 
satisfied  with.  Nor  is  it  sufficient  to 
say  that  the  bust  is  the  best  thing 
of  the  kind  that  could  possibly  be 
produced.  .  .  .  A  contract  to  pro- 
duce a  bust  perfect  in  every  respect, 
and  one  with  which  the  defendant 
ought  to  be  satisfied,  is  one  thing;  an 
undertaking  to  make  one  with  which 
she  icill  be  satisfied  is  quite  another 
thing.  The  former  can  only  be  de- 
termined by  experts.  The  latter  can 
only  be  determined  by  the  defendant 
herself.  It  may  have  been  unwise  in 
the  plaintiff  to  make  such  a  contract, 
but  having  made  it  he  is  bound  by  it." 
In  the  case  of  Brown  v.  Foster 
(1873),  113  Mass.  136,  18  Am.  R.  463, 
the  plaintiff  had  agreed  to  make  a 
satisfactory  suit  of  clothes  for  the 
defendant.  They  were  made  and 
delivered  according  to  agreement, 
but  the  defendant  was  not  satisfied 
with  them  and  refused  to  accept 
them.  The  court  held  that  he  was 
not  obliged  to  do  so,  for  "  it  is  not  for 
any  one  else  to  decide  whether  a  re- 
fusal to  accept  is  or  is  not  reasou- 


547 


§  667.] 


LAW    OF    SALE. 


[BOOK    II. 


be  no  other  test  than  his  own  convictions  or  sentiments.  There 
are,  however,  other  cases  involving  questions  of  mechanical 
fitness  or  adaptability  where,  from  the  nature  of  the  case,  a 
test  would  be  required.     Thus,  if  the  agreement  is  to  supply  a 


able,  when  the  contract  permits  the 
defendant  to  decide  himself  whether 
the  articles  furnished  are  to  his  satis- 
faction." 

The  rule  is  further  illustrated  in 
the  case  of  Gibson  v.  Cranage  (1878), 
39  Mich.  49,  33  Am.  R.  351.     Here  an 
artist  had  undertaken  to  make  an 
enlarged  picture  from  a  smaller  one, 
the  picture  when  completed  to  be 
one  that  the  purchaser  would  like 
and  that  would   be  satisfactory  to 
him.    The  artist  made  the  picture, 
but  the  other  party  was  not  satisfied 
with  it  and  would  not  accept  or  pay 
for  it.     The  artist  endeavored  to  as- 
certain what  the  objections  were,  and 
had  the  picture  changed  in  some  re- 
spects.    He  than  endeavored  to  have 
the  other  party  examine  it  again,  but 
he  refused  to  do  so,  and  the  artist 
brought  suit.     On  the  trial  the  de- 
fendant looked  at  the  picture  and 
found  it  still  unsatisfactory  to  him. 
The  plaintiff  urged  that  he  was  en- 
titled to  have  the  defects  pointed  out 
and  to  be  allowed  a  reasonable  time 
to  remedy  them.     He  failed  to  re- 
cover and  appealed  to  the  supreme 
court,  but  that  court  affirmed  the 
judgment,  and  said:  "The  plaintiff 
agreed    that  the  picture  when  fin- 
ished should  be  satisfactory  to  the 
defendant,  and   his  own  evidence 
si  lowed  that  in  this  important  par- 
ticular the  contract  had  not  been 
performed.     It  may  be  that  the  pic- 
ture was  an  excellent  one  and  that 
the  defendant  ought  to  have  been 
satisfied  with  it  and  accepted  it,  but 
under  the  agreement  the  defendant 


was  the  only  person  who  had  the 
right  to  decide  this  question.   Where 
parties  thus  deliberately  enter  into 
an  agreement  which  violates  no  rule 
of  public  policy  and  which  is  free 
from  all  taint  of  fraud  or  mistake, 
there  is  no   hardship  whatever    in 
holding  them  bound  by  it.     Artists 
or  third  parties  might  consider  a  por- 
trait an  excellent  one  and    yet  it 
might  prove  very  unsatisfactory  to 
the  person  who  ordered  it,  and  who 
might  not  be  able  to  point  out  with 
clearness  or  certainty  the  defects  or 
objections.     And  if  the  party  giving 
the  order  stipulates  that  the  portrait 
when  finished  must  be  satisfactory 
to  him  or  else  he  will  not  accept  or 
pay  for  it,  he  may  insist  upon  his 
right  as  given  him  by  the  contract." 
McClure  v.  Briggs  (1886),  58  Vt.  82, 
54  Am.  R.  715,  was  a  case  in  which 
an  organ  was  sold  under  the  con- 
dition that  it  should  be  satisfactory 
to  the  purchaser.   He  was  distrustful 
of  his  own  judgment  and  called  in 
an  expert,  who  told  him  the  tone  of 
the  organ  was  good,   but   notwith- 
standing the  expert's  opinion  he  still 
thought  he  was  dissatisfied  with  it. 
The  court  said:  "  If  he  really  thought 
so  he  was  so.   .   .    .    He  was  bound  to 
act  honestly  and  to  give  the  instru- 
ment a  fair  trial,  and  such  as  the 
seller  had  a  right,  in  the  circum- 
stances, to  expect  he  would  give  it, 
and  therein  to  exercise  such  judg- 
ment and  capacity  as  he  had,  for  by 
the  contract  he  was  the  one  to  be 
satisfied,  and  not  another  for  him." 
In  Moore   v.   Goodwin   (1887),  43 


548 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  GG7. 


machine  which  will  work  to  the  vendee's  satisfaction,  there  is 
necessarily  involved  the  duty  on  the  part  of  the  vendee  to  try 
it  reasonably  in  order  to  determine  whether  it  will  do  the  work 
or  not,  and  no  arbitrary  rejection,  without  a  reasonable  test, 
would  be  consistent  with  the  vendee's  duty.1  If,  however, 
upon  such  test,  it  does  not  work  to  his  satisfaction,  he  may  de- 
cline to  buy  it;  and  the  fact  that  others  would  deem  it  satis- 
factory, or  that  it  worked  well  before  or  after  his  test,  would 
be  immaterial.2 


Hun,  534,  the  defendant  contracted 
to  make  certain  crayon  portraits  for 
the  plaintiff,  not  to  be  accepted  unless 
in  all  respects  satisfactory  likenesses. 
It  was  held  that  neither  the  opposite 
party  nor  the  jury  could  decide  that 
he  ought  to  be  satisfied  with  the  por- 
traits made. 

i  In  Hartford  Sorghum  Mfg.  Co.  v. 
Brush  (1871),  43  Vt.  528,  the  plaintiff 
sold  a  patent  sugar  evaporator  to  the 
defendant,  who  was  to  try  it  and 
pay  for  it  if  he  liked  it,  otherwise 
the  plaintiff  was  to  take  it  back. 
The  court  held  that  the  defendant 
was  bound  to  bring  to  the  trial  of  it 
honesty  of  purpose  and  judgment 
according  to  his  capacity  to  ascer- 
tain his  wishes,  but  was  not  bound 
to  use  the  care  and  skill  of  ordinary 
persons  in  making  the  determina- 
tion. 

Daggett  v.  Johnson  (1877),  49  Vt. 
345,  was  an  action  in  assumpsit  to 
recover  the  price  of  a  number  of 
milk  pans.  The  pans  were  a  patented 
device  for  cooling  the  milk  with  run- 
ning water,  and  the  defendant  was 
to  pay  a  certain  price  if  satisfied 
with  them.  He  used  them  like  ordi- 
nary pans  for  a  time  and  then  notified 
the  plaintiffs  to  take  them  away  and 
refused  to  pay  for  them.  The  court 
said:  "We  think  the  ruling  of  the 
court,   that  the   defendant  had   no 


right  to  say,  arbitrarily  and  without 
cause,  that  he  was  dissatisfied  and 
would  not  pay  for  the  pans,  was  sen- 
sible and  sound.  ...  He  must 
act  honestly  and  in  accordance  with 
the  reasonable  expectations  of  the 
seller  as  implied  from  the  contract, 
its  subject-matter  and  surrounding 
circumstances.  His  dissatisfaction 
must  be  actual,  not  feigned;  real,  not 
merely  pretended." 

In  Singerly  v.  Thayer  (1885),  108 
Pa.  St.  291,  2  Atl.  R  230,  56  Am.  R 
207,  it  was  claimed  that  an  elevator 
was  rejected  as  unsatisfactory  before 
it  was  finished,  and  the  court  held 
that  if  it  was  so  far  incomplete  that 
the  purchaser  could  not  reasonably 
determine  whether  it  was  or  would 
be  satisfactory  to  him,  his  rejection 
was  premature  and  constituted  no 
bar  to  the  action.  See  also  Exhaust 
Ventilator  Co.  v.  Chicago,  etc.  R  Co. 
(1886),  66  Wis.  218,  28  N.  W.  R  343, 
57  Am.  R  257. 

2  In  Gray  v.  Central  R  Co.  (1877), 
11  Hun,  70,  a  contract  was  made 
wherein  the  defendants  agreed  to 
take  a  certain  steamboat  for  a  stipu- 
lated price,  "  provided  upon  trial  they 
are  satisfied  with  the  soundness  of 
her  machinery,  boilers,  etc."  Held, 
that  this  wording  of  the  written  in- 
strument expressed  precisely  what 
both  parties  meant,  and  it  was  im- 


549 


§  668.] 


LA.W    OF    SALE. 


[BOOK    II. 


§  668.  Duty  to  act  in  good  faith. —  It  clearly  is  the  duty 
of  the  vendee  in  these  cases,  it  is  said,  to  act  in  good  faith 
and  with  honesty  of  purpose,  and  not  to  express  a  dissatisfac- 
tion which  is  wholly  feigned  or  simulated.1    In  ordinary  cases, 


material  whether  they  ought  to  have 
been  satisfied.  Brady,  J.,  dissenting, 
did  "  not  agree  with  the  proposition 
that  the  defendants  had  a  right  to 
declare  arbitrarily  that  they  were 
not  satisfied  with  the  soundness  of 
the  machinery,  etc." 

Aiken  v.  Hyde  (1868),  99  Mass.  183, 
was  a  case  where  a  machine  was  sold 
with  the  agreement  that  it  should  be 
'•  entirely  satisfactory  in  all  respects" 
to  the  vendee,  or  it  might  be  re- 
turned. It  was  held  that  the  buyer 
was  not  bound  to  give  any  notice  of 
its  failure,  and  it  was  immaterial 
that  the  machine  worked  well  in  the 
hands  of  the  vendor  after  being  re- 
turned to  him. 

In  Clark  v.  Rice  (1881),  46  Mich. 
308,  9  N.  W.  R.  427,  the  contract  of 
sale  contained  the  provision  "if  on 
trial  of  thirty  days  the  machine  is 
satisfactory,  or  does  what  is  claimed 
for  it."  The  defendant  claimed  that 
he  could  reject  the  heater  if  not  sat- 
isfactory to  him,  whether  it  met  the 
warranty  or  not.  But  the  court  held 
that  the  contract  very  clearly  bound 
him  to  pay,  whether  satisfied  or  not, 
if  the  machine  did  what  was  claimed 
for  it. 

In  Wood  Reaping,  etc.  Mach.  Co.  v. 
Smith  (1883),  50  Mich.  565,  15  N.  W. 
R.  906,  the  defendant  insisted  on  the 
stipulation,  in  addition  to  the  ordi- 
nary warranty,  that  the  contract 
should  be  of  no  effect  unless  the  ma- 
chine worked  to  the  purchaser's  sat- 
isfaction. The  court  held  that  while 
the  cases  in  which  the  right  of  de- 
cision is  completely  reserved  to  the 
promisor  without  liability  to  disclose 


reasons  "are  generally  such  as  in- 
volve the  feelings,  taste  or  sensibility 
of  the  promisor,  and  not  those  gross 
considerations  of  operative  fitness  or 
mechanical  utility  which  are  capa- 
ble of  being  seen  and  appreciated 
by  others,"  yet  "this  is  not  always 
so.  It  sometimes  happens  thai  the 
right  is  fully  reserved  where  it  is  the 
chief  ground,  if  not  the  only  one, 
that  the  party  is  determined  to  pre- 
serve an  unqualified  option,  and  is 
not  willing  to  leave  his  freedom  of 
choice  exposed  to  any  contention  or 
subject  to  any  contingency."  The 
transaction  was  declared  to  belong 
to  this  class. 

Pope  Iron  and  Metal  Co.  v.  Best 
(1883),  14  Mo.  App.  502,  was  a  case 
where  a  furnace  was  sold  under  the 
condition  that  it  should  "work  sat- 
isfactorily in  melting  iron."  It  was 
held  that  the  opinions  and  feelings 
of  the  managers  of  the  plaintiff  cor- 
poration were  not,  by  the  contract, 
made  the  test,  but  that  the  contract, 
fairly  construed,  meant  that  the  fur- 
nace should  work  satisfactorily  to  a 
reasonable  and  fair-minded  man  who 
was  an  expert  in  such  matters. 

In  Singerly  v.  Thayer  (1885),  108 
Pa.  St.  291,  2  Atl.  R.  230,  56  Am.  R. 
207,  it  was  held  that  where  an  ele- 
vator was  put  into  a  building  and 
"  warranted  satisfactory  in  every  re- 
spect," the  fair  inference  was  that 
the  elevator  was  to  be  satisfactory  to 
the  purchaser;  and  while  it  could  not 
be  rejected  arbitrarily,  yet  a  bona 
li'ir  objection  by  him  to  its  working 
was  a  valid  defense  to  the  action. 

Un  Baltimore  &  Ohio  R   Co.  v. 


550 


CH.  III.]  CONDITIONAL    SALE   OF    SPECIFIC    CHATTELS.  [§  G6S. 


however,  there  can  be  no  means  of  inquiring  into  the  good 
faith  of  his  purpose,  though  circumstances  may  exist  which 
would  make  it  clear;  and  so  far  as  those  cases  are  concerned 
which  appeal  solely  to  considerations  of  taste,  sentiment  or 


Bryclon  (1885),  65  Md.  198,  3  AtL  R. 
306,  57  Am.  R  318,  the  plaintiff  con- 
tracted to  supply  the  defendant  with 
coal  "of  such  quality  as  should  be 
satisfactory  to  defendant's  masters 
of  transportation  and  machinery." 
It  was  held  that  this  term  of  the 
contract  did  not  give  the  officers 
named  a  capricious  or  arbitrary  dis- 
cretion to  reject  it.  It  was  their 
judgment  which  was  to  decide  the 
question  of  acceptance,  but  the  law 
required  them  to  exercise  a  fair,  just 
and  honest  judgment  on  the  subject. 
On  the  question  of  fraud  it  was  held 
proper  to  show  what  knowledge  and 
means  of  knowledge  they  had  of  the 
quality  of  the  coal  and  its  fitness  for 
the  use  intended. 

Silsby  Mfg.  Co.  v.  Town  of  Chico 
(1885),  24  Fed.  R.  893,  involved  the 
sale  of  a  steam  fire  engine  "  subject 
to  the  approval  of  the  fire  commit- 
tee," the  vendor  warranting  "  the 
workmanship,  finish  and  perform- 
ance of  the  machine  satisfactory  to 
them,  or  the  same  to  be  removed 
without  expense."  It  was  held  that, 
in  the  absence  of  fraud,  it  was  not 
enough  that  the  vendees  ought  to  be 
satisfied;  they  must  be  satisfied,  or 
they  are  not  bound  to  accept  it. 

In  Exhaust  Ventilator  Co.  v.  Chi- 
cago, etc.  R.  Co.  (1886),  66  Wis.  218, 
28  N.  W.  R.  343,  57  Am.  R  257,  fans 
were  sold  under  a  warranty  that 
"  they  will  exhaust  the  smoke  and 
gases  in  a  satisfactory  manner."  The 
court  held  that  "  if  the  fans  are  not 
honestly  and  in  good  faith  satisfac- 
tory to  the  defendant,  and  the  defend- 


ant notified  the  plaintiff  of  that  fact 
in  a  reasonable  time,  then  and  in 
that  case  there  had  been  no  sale,  and 
the  defendant  is  not  liable  for  the 
price." 

Duplex  Safety  Boiler  Co.  v.  Garden 
(1886),  101  N.  Y.  387,  4  N.  E.  R.  749, 
54  Am.  R.  709,  was  a  case  of  rebuild- 
ing boilers,  which  were  to  be  paid 
for  as  soon  as  the  defendants  "  are 
satisfied  that  the  boilers  as  changed 
are  a  success."  As  soon  as  the  boil- 
ers were  changed  the  defendants  be- 
gan to  use  them  and  continued  to  do 
so.  The  defendants  defended  an  ac- 
tion for  the  price  on  the  ground  that 
the  question  of  the  success  of  the 
boilers  was  for  them  alone.  But  the 
court  held  that  a  simple  allegation 
of  dissatisfaction,  without  some  good 
reason  assigned  for  it,  might  be  a 
mere  pretext,  and  cannot  be  re- 
garded. 

In  McCormick  Mach.  Co.  v.  Coch- 
ran (1887),  64  Mich.  636,  31  N.  W.  R, 
561,  a  warranty  of  a  machine  to  give 
the  defendant  satisfaction  was  held 
to  contemplate  a  reasonable  satis- 
faction. In  the  case  of  Seeley  v. 
Welles  (1888),  120  Pa.  St.  69,  13  Atl. 
R.  736,  the  defendant  testified  that 
he  told  plaintiff's  agent  that  he 
would  not  take  the  reaper  until  he 
tried  it,  and  if  it  worked  to  suit  him, 
and  his  team  could  handle  it  on  his 
farm,  he  would  buy  it,  and  that  he 
was  to  be  the  judge  of  this  himself. 
Assuming  the  truth  of  this  testi- 
mony the  court  held  that  although 
his  objections  may  have  been  ill- 
founded  or  even  unreasonable,  yet  if 


551 


§  669.] 


LAW   OF    SALE. 


[book  IT. 


artistic  sensibility,  it  is,  as  has  been  said,  doubtful  whether  the 
vendee's  motives  can  be  questioned. 

§  669.  Within  what  time  decision  to  he  made.— The  par- 
ties may,  by  their  contract,  expressly  stipulate  as  to  the  time 
within  which  the  decision  is  to  be  reached;  but  if  they  have 


they  were  made  in  good  faith  he  had 
a  right  to  reject  the  reaper. 

A  similar  conclusion  was  reached 
in  Piatt  v.  Broderick  (1888),  70  Mich. 
577,  38  N.  W.  R.  579,  where  a  ma- 
chine was  sold  with  the  understand- 
ing that  it  would  be  paid  for  if  it 
suited  the  purchaser.  The  court 
held  that  under  the  agreement  it  was 
immaterial  whether  the  machine 
worked  well  or  not.  The  defendant 
.  was  to  be  satisfied  with  it,  and  if  it 
did  not  suit  him  he  had  a  right  to 
return  it. 

In  Hawkins  v.  Graham  (1889),  149 
Mass-284,  21  N.  E.  R.  312,  the  plaint- 
iff agreed  to  put  a  heating  plant  into 
defendant's  buildings,  to  be  paid  for 
upon  satisfactory  completion.  If  not 
able  to  heat  the  buildings  "in  ac- 
cordance with  the  requirements  as 
above  set  forth,"  the  plaintiff  was  to 
remove  the  machinery  at  his  own 
expense.  But  if  the  heating  was  sat- 
isfactory and  conformed  to  the  re- 
quirements, the  price  was  to  be  paid 
"  after  such  acknowledgment  by  the 
owner  or  the  work  demonstrated." 
It  was  held  that  the  evident  intent 
of  these  phrases  was  that  the  satis- 
factoriness  of  the  system  was  to  be 
determined  by  the  mind  of  a  reason- 
able man  and  by  the  external  meas- 
ures set  forth  in  the  conti'act. 

In  the  case  of  United  States  Fire- 
Alarm  Co.  v.  Big  Rapids  (1889),  78 
Mich.  67,  43  N.  W.  R.  1030,  the  plaint- 
iff contracted  to  furnish  defendant 
witli  a  fire-alarm  bell,  which  was 


to  be  tested  by  defendant  and  ac- 
cepted if  it  proved  satisfactory.  The 
common  council  tested  it  and  were 
not  satisfied,  and  rejected  the  bell. 
Held,  that  the  common  council  was 
not  bound  to  accept  it  unless  satis- 
fied after  the  test. 

In  Warder  v.  Whitish  (1890),  77 
Wis.  430,  46  N.  W.  R.  540,  the  de- 
fendant took  a  binder  with  the  un- 
derstanding that  he  could  try  it  and 
if  not  suited  he  could  return  it  at 
any  time.  A  charge  that  he  might 
reject  it  whether  it  was  capable  of 
doing  good  work  or  not  was  ap- 
proved. 

In  Howard  v.  Smedley  (1891)*  140 
Pa.  St.  81.  21  Atl.  R.  253,  the  court 
held  that  where  the  plaintiff  con- 
tracted to  erect  an  elevator  in  de- 
fendant's hotel,  to  be  paid  for  when 
"  in  running  order  satisfactory  to  " 
the  defendant,  it  was  not  error  to 
enter  a  peremptory  nonsuit  upon 
showing  by  the  plaintiff  that  the  ele- 
vator was  not  running  to  his  satis- 
faction and  that  his  objections  did 
not  arise  out  of  mere  caprice. 

Osborne  v.  Francis  (1893),  38  W. 
Va.  312,  18  S.  E.  R.  591,  45  Am.  St.  R. 
859,  was  a  case  where  the  defendant 
agreed  to  take  a  binder  if  it  worked 
to  his  satisfaction.  He  was  not  sat- 
isfied with  it  and  refused  to  accept 
it.  There  was  no  written  contract, 
but  the  court  held  that  the  evidence 
sufficed  to  show  that  the  buyer  ex- 
pressly reserved  the  right  to  reject 
and  send   back  the  machine  if  on 


532 


CH.  III. J  CONDITIONAL    SALE    OF   SPECIFIC    CHATTELS.  [§  669. 


not,  a  reasonable  time  would  be  implied.  In  either  event  the 
vendee  must  exercise  his  right  within  the  time  so  fixed,  and  a 
failure  to  do  so,  without  reasonable  excuse,  would  furnish 
strong  evidence  of  satisfaction.1 


trial  it  should  not  be  satisfactory  to 
him  positively  and  generally  with- 
out saying  in  what  respect. 

In  the  case  of  Jay  v.  Wilson  (1895), 
91  Hun,  391,  the  court  held  that  where 
a  loan  is  to  be  made  upon  a  title, 
provided  the  title  is  satisfactory  to 
the  attorneys  of  the  lender,  the  at- 
torneys have  no  right  to  refuse  arbi- 
trarily or  capriciously  to  be  satisfied 
with  the  title. 

In  Crane  Elevator  Co.  v.  Clark 
(1897),  53  U.  S.  App.  257,  80  Fed.  R. 
705,  26  C.  C.  A.  100,  an  elevator  was 
to  be  put  into  a  building  subject  to 
the  satisfaction  of  the  architect.  It 
was  held  that  the  decision  of  the 
architect  was  conclusive,  but  the  par- 
ties had  a  right  to  his  independent 
and  honest  judgment. 

1  In  Wood  Reaping,  etc.  Mach.  Co. 
v.  Smith  (1883),  50  Mich.  565, 15  N.  W. 
R.  906,  the  court  said  of  a  provision 
in  a  warranty  calling  for  immediate 
notice,  in  case  a  machine  did  not 
work  well,  "This  provision  for  im- 
mediate notice  does  not  mean  the 
shortest  time  possible  in  which  notice 
could  be  given.  The  terms  must  re- 
ceive a  sensible  interpretation  —  an 
interpretation  favorable  to  the  gen- 
eral object  and  consistent  with  the 
surrounding  conditions.  It  would  be 
necessary  to  make  allowance  for  the 
engagements  of  the  parties,  the  dis- 
tance between  them,  the  facility  of 
communication,  and  any  other  inci- 
dents having  a  bearing.  No  greater 
dispatch  would  be  implied  than  such 
as  would  be  fairly  just  and  reason- 
able in  view  of  all  the  circum- 
stances." 


Pierce  v.  Cooley  (1885),  56  Mich. 
552,  23  N.  W.  R.  310,  was  a  case 
where  the  defendants  purchased  a 
machine  from  the  plaintiffs,  to  be 
accepted  if  it  worked  to  defendants' 
satisfaction,  and  paid  for  by  a  note 
due  May  1,  1884,  or  by  cash  payment 
on  that  day.  The  court  held  that 
the  option  to  take  or  reject  continued 
until  May  1,  1881,  when  they  were 
undoubtedly  bound  to  decide.  Prior 
to  that  date  title  could  not  pass  with- 
out an  acceptance  by  the  purchaser. 

In  Stutz  v.  Coal  &  Coke  Co.  (1889), 
131  Pa.  St.  267,  18  Atl.  R.  875,  ma- 
chinery was  sold  with  the  stipula- 
tion that  it  was  "  to  be  first  class  in 
all  particulars,  and  perform  in  a  sat- 
isfactory manner,"  and  thirty  days 
were  allowed  for  trial.  But  the  ma- 
chinery, while  not  satisfactory,  was 
retained  after  the  expiration  of  the 
thirty  days,  and  the  plaintiffs  were 
notified  that  unless  they  put  it  into 
satisfactory  working  condition  the 
defendants  would  have  it  done  at 
plaintiffs'  expense.  This,  the  court 
held,  was  an  election  to  keep  the  ma- 
chinery. 

In  the  case  of  Aultman  v.  Wykle 
(1889),  36  111.  App.  293,  the  defendant 
bought  a  machine  from  the  plaintiff 
with  a  warranty  that  it  would  do 
good  work.  Five  days  were,  by  the 
terms  of  the  agreement,  allowed  for 
the  trial,  and  if  dissatisfied  the  de- 
fendant was  to  give  immediate  no- 
tice, but  if  no  notice  was  given  within 
that  time  and  defendant  continued 
to  use  the  machine,  it  was  to  be 
conclusive  evidence  of  satisfaction. 
Held,  that  an  instruction  ignoring 


553 


§§  670,  671.] 


LAW    OF   SALE. 


[BOOK   II. 


§  670.  Duty  to  give  notice  or  return. —  Unless  so  stipulated 
in  the  contract,  the  vendee  is  not  bound  to  return  the  article; 
he  performs  his  duty  when  he  gives  reasonable  notice  of  his 
dissatisfaction.1  The  contract  may,  however,  require  him  to 
return  the  article,  and  if  it  does  this  provision  must  be  complied 
with. 

§671.  How  buyer's  satisfaction  indicated. —  The  fact  of 
the  buyer's  satisfaction  may  be  established  in  a  variety  of  ways. 
There  may,  of  course,  be  express  admissions  of  the  fact;  but 
other  forms  will  suffice.  Retention  beyond  a  reasonable  time 
has  already  been  suggested,  and  a  failure  to  return  where  that 
was  required.  A  sale  or  disposition  of  the  article  as  one's  own 
would  also  be  evidence,  ordinarily  conclusive;  and  so  would 
the  fact  that  the  buyer  had  kept  and  consumed  the  article  in 


the  terms  of  the  contract  and  allow- 
ing defendant  a  reasonable  time  in 
which  to  test  the  machine  was  error. 

In  the  case  of  C.  &  C.  Electric 
Motor  Co.  v.  Frisbie  (1895),  66  Conn. 
67, 33  AtL  R.  604,  an  elevator  was  put 
in  with  the  agreement  that  it  should 
be  a  satisfactory  working  machine 
for  one  year.  It  was  claimed  that 
this  was  a  condition  of  the  sale  and 
by  its  express  terms  gave  the  plaint- 
iff a  year  in  which  to  reject.  But 
the  court  held  that  such  a  warranty 
is  not  a  condition  at  all;  if  it  were 
it  would  be  a  subsequent,  not  a  pre- 
cedent, one.  Hence  there  was  no 
error  of  law  in  the  finding  that  the 
plaintiff  had,  by  acts  and  conduct, 
accepted  the  elevator  prior  to  the 
expiration  of  the  year. 

In  Forsaith  Mach.  Co.  v.  Mengel 
(1894),  99  Mich.  280,  58  N.  W.  R  305, 
defendants  purchased  a  match  ma- 
chine with  the  privilege  of  returning 
it  if  not  satisfactory.  Four  months 
after  they  were  in  a  position  to  test 


the  machine,  and  nearly  a  year  after 
shipment,  the  defendants  for  the  first 
time  proposed  to  return  the  machine. 
Held,  that  the  delay  was  clearly  un- 
reasonable. The  defendants  had  the 
option  of  accepting  or  rejecting  the 
machine,  but  they  were  bound  to  act 
promptly,  and  retention  beyond  a 
reasonable  time  is  tantamount  to  an 
acceptance. 

In  Palmer  v.  Banfield  (1893),  86 
Wis.  441,  56  N.  W.  R  1090,  the  vendee 
of  a  harvesting  machine  had  a  right 
to  return  it  either  because  of  defects 
or  dissatisfaction.  He  was  not  sat- 
isfied but  continued  to  use  it,  not  as 
further  test  but  to  complete  his  har- 
vest. Held,  to  constitute  an  accept- 
ance whereby  his  right  to  return 
was  lost. 

i  Esterly  v.  Campbell  (1891),  44  Mo. 
App.  621  [citing  Exhaust  Vent.  Co.  v. 
Railroad  Co.,  69  Wis.  454;  McCormick 
Harv.  Machine  Co.  v.  Chesrown,  33 
Minn.  32;  Gibson  v.  Vail,  53  Vt.  476; 
Hunt  v.  Wyman,  100  Mass.  198]. 


554 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§  672,  673. 

use.1  A  refusal  to  restore  the  goods  to  the  seller  would  have 
the  same  effect.2 

5.  Sale  if  Approved  oy  Third  Person. 

§672,   Sales  upon  approval  of  third  person. —  But  the 

principle  of  the  foregoing  sections,  so  far  as  they  hold  that  the 
question  is  one  for  the  unlimited  arbitrament  of  the  vendee, 
without  inquiry  into  motives,  does  not,  it  is  said,3  "apply,  in 
its  unqualified  form,  in  a  case  where  the  contracting  parties 
have  expressly  stipulated  that  the  article  to  be  supplied  shall 
be  such,  in  respect  to  the  quality  or  otherwise,  as  shall  be  ap- 
proved by  or  satisfactory  to  some  third  person,  though  that 
third  person  may  be  an  agent  or  an  employee  of  one  of  the 
parties  to  the  contract.  In  such  case,  though  it  be  made  a  con- 
dition precedent  that  the  article  shall  be  approved  by  the  party 
designated,  yet,  if  it  can  be  shown  that  the  approval  has  been 
withheld  from  motives  of  selfish  interest,  bias,  partiality  or 
corruption,  the  party  prejudiced  by  such  action  may,  notwith- 
standing the  absence  of  such  approval,  recover  on  the  contract 
for  the  non-acceptance  of  the  article  furnished." 

§  673.  - —  Third  person  must  act  in  good  faith. —  '•  In 

such  contracts  it  is  an  implied  condition  that  the  person  desig- 
nated to  approve  shall  act  with  entire  good  faith  to  both  of 
the  contracting  parties.  Both  parties  have  the  right  to  insist 
upon  such  good  faith,  and  the  want  of  it  will  dispense  with 
the  condition  requiring  the  approval.  The  court  will  not  allow 
a  defendant  to  avail  himself  of  the  condition  precedent  to  de- 
feat the  right  of  the  plaintiff  to  recover  for  a  violation  of  the 
contract,  where  there  has  been  fraud  or  mala  fides  on  the  part 
of  the  person  appointed  to  approve  or  disapprove.  But  in  the 
absence  of  fraud  or  bad  faith  in  the  conduct  of  such  party,  in 
respect  to  the  fact  of  his  approval  or  the  withholding  of  it,  his 
judgment  or  determination  is  to  be  accepted  as  final  and  con- 

i  Boothby  v.  Piaisted  (1871).  51  N.  H.        2  Jones  v.  Wright  (1873),  71  III.  61. 
436,   12  Am.   R,    140;    Delamater  v.        3  Baltimore  &  Ohio  R.  Co.  v.  Biy don 
Chappell  (1877),  48  Md.  241.  (1885),  65  Md.  198,  57  Am.  R.  318. 

555 


§  673.] 


LAW    OF    SALE. 


[BOOK    II. 


elusive.  No  mere  error  or  mistake  of  judgment  will  vitiate 
his  determination.  The  very  object  of  his  appointment  is  to 
prevent  and  exclude  contention  and  litigation ;  and  hence  noth- 
ing short  of  fraud' or  mala  fides  in  the  exercise  of  his  power  to 
reject  or  approve  the  article  contracted  for  will  dispense  with 
the  strict  legal  effect  of  the  condition  precedent.  This  is  now 
the  settled  doctrine,  in  respect  to  this  class  of  contracts,  in  the 
courts  both  of  this  country  and  of  England." l 


i  Baltimore  &  Ohio  R.  Co.  v.  Brydon, 
supra  [citing  Wilson  v.  Y.  &  Md. 
Line  R.  Co.,  11  G.  &  J.  (Md.)  58;  Lynn 
v.  Baltimore  &  Ohio  R.  Co.,  60  Md.. 
404, 45  Am.  R.  741 ;  Sweeney  v.  United 
States,  109  U.  S.  618;  Martinsburg  v. 
Potomac  R.  Co.,  114  U.  S.  549;  Sharpe 
v.  San  Paulo  R.  Co.,  L.  R.  8  Ch.  A  pp. 
597]. 

"Wood  was  purchased,  to  be  meas- 
ured and  received  by  the  quarter- 
master at  Walla  Walla.  Held,  that 
title  did  not  pass  until  such  measure- 
ment and  receipt  by  the  quarter- 
master at  Walla  Walla.  Rosenthal 
v.  Kahn  (1890),  19  Oreg.  571,  24  Pac. 
R.  989.  A  ship-builder  agreed  to  alter, 
fit  for  sea  and  deliver  a  gun-boat  as  a 
merchant  vessel,  under  the  inspec- 
tion and  subject  to  the  approval  of  a 
third  person  who  was  experienced 
in  ship-building.  Held,  that  the  third 
person  named  was  made  an  arbitra- 
tor between  the  parties,  and  his  ap- 
proval was  binding  upon  them  as  an 
award,  however  much  he  may  have 
erred  in  his  judgment.  Flint  v.  Gib- 
son (1871),  106  Mass.  391. 

Plaintiff  was  the  vendor  of  a  de- 
vice to  be  used  in  boilers  for  the 
purpose  of  saving  fuel.  Defendant 
agreed  to  take  one  provided  that 
upon  trial  it  made  a  saving  of  twelve 
per  cent,  and  his  engineer  was  to  be 
the  judge  of  its  performance.  The 
test  was  made  and  the  engineer's 


decision  rendered  to  the  effect  that 
it  saved  more  than  the  required 
amount.  Held,  that  this  decision  of 
defendant's  engineer  "is  to  be  con- 
sidered as  the  award  of  a  referee 
under  a  submission  to  arbitrate.  In 
the  absence  of  any  suggestion  of 
fraud,  this  award  cannot  be  im- 
peached on  the  ground  of  any  error 
in  judgment  on  his  part."  Robbins 
v.  Clark  (1880),  129  Mass.  145.  De- 
fendant purchased  meat  from  plaint- 
iffs, of  a  stipulated  kind  and  quality, 
and  appointed  an  inspector,  with 
plaintiffs'  approval,  to  pass  upon  it 
as  satisfying  the  terms  of  the  con- 
tract. The  meat  was  inspected  and 
approved  by  the  inspector,  and  put 
upon  the  cars  for  shipment,  but  de- 
fendant refused  to  take  it.  Accord- 
ingly it  was  sold  by  plaintiffs  and 
action  brought  for  damages.  Held, 
that  the  substance  of  the  agreement 
was  that  the  defendant  would  accept 
such  meat,  when  delivered,  as  had 
been  inspected  and  pronounced  in 
conformity  with  the  terms  of  the 
contract.  In  the  absence  of  fraud 
the  purchaser  was  as  much  bound  to 
receive  the  meat  as  though  he  had 
inspected  and  approved  it  in  person. 
Nofsinger  v.  Ring  (1879),  71  Mo.  149. 

But  where  a  contract  was  made 
for  the  delivery  of  about  sixty  thou- 
sand blocks  of  granite  according  to 
certain  directions,  provided  that  if 


556 


CH.  III.]       CONDITIONAL   SALE  OF  SPECIFIC  CHATTELS.       [§§  674,  675. 

6.  Sate  of  Goods  to  ~be  Appraised. 

§  674.  Title  does  not  pass  ordinarily  until  appraisal.— 

It  has  been  seen  in  an  earlier  chapter l  that  it  is  competent  for 
the  parties  to  contract  for  the  sale  of  goods  at  a  price  which 
shall  be  fixed  by  some  third  person  specified  or  to  be  agreed 
upon,  and  that,  when  the  price  is  so  fixed,  it  becomes  operative 
between  the  parties  as  though  they  had  themselves  deter- 
mined it. 

But  in  order  that  such  a  contract  of  sale  shall  operate  to 
pass  the  title,  it  is,  in  general,  essential  that  the  price  shall  be 
fixed  as  provided  in  the  agreement;  for  if  the  parties  fail  to 
agree  upon  the  valuer,  or  if  the  latter  fails  or  refuses  to  act, 
the  contract,  if  executory,  must  lack  an  essential  element,  and 
the  title  will  not  pass,2  unless  a  contrary  intention  appears, 
even  though  the  failure  to  procure  the  appraisal  was  due  to  the 
default  of  one  of  the  parties.3  Where,  however,  the  goods 
have  been  delivered,  and  the  vendee  has  prevented  the  valu- 
ation, as  by  consuming  or  disposing  of  the  goods  before  the 
value  was  fixed,  he  will  be  liable  for  their  reasonable  value.4 

7.  Sale  or  Return. 

§675.  Sale  with  option  to  return  or  pay.— To  be  distin- 
guished from  the  cases  in  the  last  sections  are  those  in  which 
the  option  is  the  opposite,  *'.  e.,  that  the  article  is  purchased  and 
shall  be  paid  for  unless  it  be  returned. 

at  any  time,  in  the  judgment   of  the  plaintiff.     Connecticut  Valley, 

defendants'  engineer,  plaintiff  was  etc.  Co.  v.  Trustees  (1898),  32  App. 

manifestly    unable    to    furnish  the  Div.  (N.  Y.)  83. 

blocks  as  required,  then  the  trustees  1  See  ante,  §§  202,  203. 

might  declare  the  contract  null  and  2  Fuller  v.   Bean  (1857),  34  N.  H. 

void,  the  court  held  that  the  ques-  290';  Hutton  v.  Moore  (1870),  26  Ark. 

tion  of  the  ability  of  the  contractor  382. 

to  furnish  the   stone   did  not  rest  3T/hurnell    v.    Balbirnie    (1837),   2 

exclusively  with  the  engineer,  but  Mees.  &  Wels.  786;  Vickers  v.  Vick- 

that  a  jury  might  properly  consider  ers  (1867),  L.  R.  4  Eq.  529;  Milnes  v. 

whether,  under  the  circumstances,  Gery   (1807),   14  Ves.  400;   Wilks  v. 

the  engineer  had  any  sufficient  justi-  Davis  (1817),  3  Meriv.  507. 

fication  for  his  decision  adverse  to  4  Clarke  v.  Westrope  (1856),  18  Com. 

557 


§§  676,  677.]  law  of  sale.  [book  ii. 

g  676.  Here  there  is  a  present  sale  subject  to  a  con- 
dition subsequent.— As  is  said  in  one  case:1  "An  option  to 
purchase  if  he  liked  is  essentially  different  from  an  option  to 
return  a  purchase  if  he  should  not  like.  In  one  case  the  title 
will  not  pass  until  the  option  is  determined ;  in  the  other  the 
property  passes  at  once,  subject  to  the  right  to  rescind  and  re- 
turn." 

This  is  directly  in  line  with  cases  already  considered  in  a 
previous  section  when  treating  of  deposits  of  grain,  in  which 
it  was  found  that  a  sale  existed  whenever  the  owner  had  con- 
ferred upon  the  other  party  the  option  to  determine  whether  to 
pay  for  the  article  in  money  or  property  as  he  should  elect.2 

§  677.  Nature  of  title  acquired  by  vendee  —  Risk  of  loss.— 

A  contract  of  this  nature,  as  has  been  seen,  constitutes  usually 
a  present  sale  subject  to  be  defeated  by  a  condition  subsequent. 
Until  return,  therefore,  the  title  is  in  the  vendee.  lie  may  sell 
the  goods  as  his  own,3  and  thus  defeat  the  return;  or  they  may 
be  seized  by  his  creditors,4  with  like  effect.  The  risk  usually  is 
"his  also,  as  the  risk  follows  the  title,5  excepting,  perhaps,  such 

B.  765,  86  Eng.  Com.  L.  764;  Humas-  facture  and  sale  of  soda-water  de- 
ton  v.  Telegraph  Co.  (1873),  20  Wall,  livers  it  in  bottles  to  a  customer,  and 
(U.  S.)  20;  Kenniston  v.  Ham  (1854),  takes  a  deposit  from  him  with  the 
29  N.  H.  501.  understanding  that  he  may  return 

1  Hunt  v.  Wynian  (1868),  100  Mass.  the  bottles  and  take  back  the  deposit, 

198.    To  same  effect:    McKinney  v.  or  keep  the  bottles  and  regard  the  de- 

Bradlee  (1873),  117  Mass.  321;  Foley  posit  as.  a  payment,  as  he  may  elect, 

v.  Felrath  (1893),  98  Ala.  176,  13  S.  R.  such  a  transaction  amounts  to  a  sale 

485;  Wind  v.  Her  (1895),  93  Iowa,  316,  of  the  bottles  at  the  election  of  the 

61  N.  W.  R.  1001,  27  L.  R.  A.   219;  purchaser.     People  v.  Cannon  (1893), 

Str,  uss   Saf\alery   Co.   v.    Kingman  139  N.  Y.  32,  34  N.  E.  R.  759,  36  Am. 

(1890),  4^  Mo.  App.  208;  Jameson  v.  St.  R.  668,  distinguishing  Westcott  v. 

Gregory  (1863),   4  Mete.    (Ky.)   363;  Thompson  (1858),  18  N.  Y.  363. 

Johnson  v.  McLane  (1845),  7  Blackf.  2  See  ante,  §  34. 

(Ind.)  501,  43  Am.  Dec.  102;  Walker  3 Dearborn  v.  Turner  (1839),  16  Me. 

v.  Blake  (1854),  37  Me.  373;  Allen  v.  17,  33  Am.   Dec.  630;  McKinney  v. 

Maury  (1880),  66  Ala.  10;  Robinson  v.  Bradlee  (1873),  117  Mass.  321. 

Fairbanks  (1886),  81  Ala.  132;  House  4 Martin  v.  Adams  (1870),  104  Mass. 

v.  Beak  (1892),  141  111.  290,  30  N.  E.  R.  262;  Hotchkiss  v.  Higgins  (1884),  52 

1065,  33  Am.  St.  R.  307.  Conn.  205,  52  Am.  R.  582. 

If  a  person  engaged  in  the  manu-  5  As  where  goods  are  destroyed  by 

558 


CH.  III.]  CONDITIONAL    SALE   OF   SPECIFIC    CHATTELS.  [§  677. 


risks  as  inhere  in  the  very  nature  of  the  property  or  are  inci- 
dental to  the  tests  or  other  acts  which  the  contract  gives  the 
buyer  the  right  to  perform.1 


fire  before  return  (Strauss  Saddlery 
Co.  v.  Kingman  (1890),  42  Mo.  App. 
208;  Foley  v.  Felrath  (1893),  98  Ala. 
176,  13  S.  R.  485);  or  a  horse  dies. 
Carter  v.  Wallace  (1884),  32  Hun 
<N.  Y.),  384. 

1  In  Carter  v.  Wallace,  supra,  the 
court  said:  "The  plaintiff  was  the 
owner  of  the  horse,  and  it  is  admitted 
that  he  delivered  it  into  the  posses- 
sion of  the  defendant.  While  in  the 
possession  of  the  defendant  the  horse 
was  taken  sick,  and  died  within  one 
day  thereafter.  The  parties  had  ne- 
gotiations concerning  the  sale  of  the 
horse,  which  resulted  in  the  delivery 
of  the  horse  as  stated.  The  plaintiff 
claims  that  the  negotiations  resulted 
in  a  complete  and  absolute  sale  of 
the  property  at  the  price  of  $130,  and 
that  the  same  was  delivered  in  pur- 
suance of  the  bargain,  with  the  privi- 
lege on  the  part  of  the  defendant  to 
return  the  same  if,  on  trial,  she  did 
not  drive  to  suit  him.  If  such  was 
the  agreement,  then  the  title  to  the 
property  passed  to  the  vendee,  and, 
until  an  election  is  made  to  return 
the  property,  it  is  at  the  risk  of  the 
purchaser,  and  in  case  of  any  loss  or 
injury  to  the  property  it  will  fall  on 
the  purchaser."  But  in  Head  v.  Tat- 
tersall  (1871),  L.  R.  7  Exch.  7,  Head 
bought  a  horse  of  Tattersall,  war- 
ranted to  have  hunted  with  the  Bi- 
cester hounds.  By  a  condition  of  the 
contract  he  might  return  the  horse, 
if  it  did  not  answer  the  description, 
at  any  time  up  to  the  Wednesday 
evening  following  the  sale.  Before 
he  took  the  horse  away,  Head  heard 
that  the  horse  had  not  hunted  with 
the  hounds,  which  afterwards  proved 


to  be  the  fact;  but  he  took  it  with 
him,  and  while  on  the  way  to  Head's 
stable  the  horse  became  frightened 
without  Head's  fault,  became  un- 
manageable, and  was  seriously  in- 
jured. Within  the  time  agreed  upon 
Head  returned  the  horse  to  Tatter- 
sall, who  denied  his  obligation  to  re- 
ceive it  back  in  its  injured  condition, 
and  Head  sued  to  recover  back  the 
price  paid,  and  he  was  held  to  be  en- 
titled to  recover.  Bramwell,  B.,  said: 
"It  is  said  the  right  to  return  was 
lost  because  the  rule  is  that  a  buyer 
cannot  return  a  specific  chattel  ex- 
cept it  be  in  the  same  state  as  when 
it  was  bought.  That  is  quite  true  as 
a  general  proposition,  but  in  such  a 
case  as  the  present  the  rule  must,  in 
my  opinion,  be  qualified  thus:  The 
buyer  must  return  the  horse  in  the 
same  condition  as  when  he  bought 
it,  but  subject  to  any  of  those  inci- 
dents to  which  the  horse  may  be  lia- 
ble, either  from  its  inherent  nature, 
or  in  the  course  of  the  exercise  by 
the  buyer  of  those  rights  over  it 
which  the  contract  gave.  .  .  .  No 
doubt  some  cases  which  may  be  put 
by  way  of  illustration  present  diffi- 
culties, but  they  can  all  be  explained 
if  the  condition  is  borne  in  mind  that 
the  right  to  return  remains,  in  case 
of  alteration  of  condition,  only  where 
that  alteration  is  attributable  either 
to  the  horse's  nature  or  to  some  inev- 
itable accident,  or  to  some  incident 
to  which  the  horse  was  liable,  while 
the  buyer  was  exercising  his  right 
over  it  under  the  contract.  Thus, 
where  a  buyer,  who  has  bought  a 
horse  not  warranted  to  jump,  tries  it 
at  jumping,  and  so  injures  it,  it  is 


559 


§  678.]  LAW  OF  SALE.  [BOOK  II. 

§  678.  Option  usually  vendee's  only  —  Security  of  seller.— 

The  option,  moreover,  is  the  vendee's,  and  the  seller  has  no  lien 
or  title  reserved  by  virtue  of  which  he  can  enforce  a  return  if 
the  goods  are  not  paid  for.1  As  will  be  seen,  the  vendor's  secu- 
rity "  rests  in  the  contract." 

Thus  in  one  case2  it  appeared  that  the  plaintiff  had  delivered 
to  one  Nason  a  cow,  taking  Nason's  written  promise  to  return 
the  same  cow  within  a  year  with  a  calf  by  her  side,  or  to  pay 
$22.50.  Before  the  year  had  expired  Nason  sold  the  cow  and 
calf  to  defendant,  from  whom  plaintiff  sought  to  recover  them. 
Said  the  court:  "We  are  very  clear  that  the  security  of  the 
plaintiff  rested  in  contract,  and  that,  Nason  having  the  alter- 
native to  return  or  pay,  the  property  passed  to  him  and  he  was 
at  liberty  to  sell  the  cow."  In  another  case3  in  the  same  court 
it  is  said:  "  Whether  the  alternative  is  to  return  specifically  or 
in  kind,  or  specifically  or  to  pay  a  certain  sum,  the  principle 
is  the  same.  The  property  in  the  thing  delivered  passes,  and 
the  remedy  of  the  former  owner  rests  in  contract.  It  is  the 
option  conceded  to  the  party  receiving  which  produces  this 
effect.  He  may  do  what  he  will  with  the  article  received.  If 
he  pays,  he  fulfills  his  contract.   If  he  neither  pays  nor  returns, 

clear  his  right  of  return  would  be  could  be  if  the  horse  sold  were  to  be 
gone,   because  the   accident  would  left  at  the  vendor's  by  his  permission 
be  his  own  fault.    He  would  not  be  after  the  sale  and  were  to  die  there." 
trying  the  horse  by  virtue  of  any  The  other  judges  expressed  no  opin- 
right  given  to  him  under  his  agree-  ion  on  what  would  have  been  the  re- 
men  t.     If,  however,  the  injury  were  suit  had  the  horse  died.     . 
caused  by  reason  of  a  trial  necessary  Where  the  horse  is  sold  on  approval 
to  test  the  warranty  the  horse  was  and  dies  without  the  fault  of  the 
sold  under,  then  the  right  would  re-  vendee,  the  loss  falls  on  the  seller, 
main.   The  case  of  a  horse  dying  was  Elphick  v.  Barnes  (1880),  5  C.  P.  Div. 
also  put  to  us.  But  there,  if  the  death  321.      Compare  also  Smith  v.  Hale 
occurs  through  some  natural  disease,  (1893),  158  Mass.  178,  33  N.  E.  R.  493, 
or  without  the  purchaser's  default,  35  Am.  St.  R.  485. 
is  he  to  be  without  a  remedy?     It  iMcKinney  v.  Bradlee  (1873\  117 
may  be  answered  that  he  might  have  Mass.  321 ;  Dearborn  v.  Turner  (1839), 
his  action  on  the  warranty.    How-  16  Me.  17,  33  Am.  Dec.  630. 
ever  that  may  be,  I  am  disposed  to  2  Dearborn  v.  Turner,  supra. 
think  that  even  in  such  a  case  the  3  Buswell  v.  Bicknell  (1840),  17  Me. 
contract   might  still  be   rescinded,  344,  35  Am.  Dec.  262. 
just  in  the  same  way  as  I  think  it 

5G0 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  679. 


he  is  lir.ble  to  an  action."    Numerous  other  cases  illustrate  this 
rule,  many  of  which  are  cited  in  the  note.1 


1679. 


Stipulations  reserving  title.- 


Contracts  in  this 
general  form  may,  nevertheless,  be  made  conditional.  Thus, 
the  parties  may  stipulate  that,  until  the  buyer  has  determined 
whether  he  will  purchase  or  return,  the  title  shall  continue  in 
the  seller,  and  this  reservation  is  effectual.2  These  cases,  how- 
ever, are  properly  to  be  classed  among  the  cases  of  sale  upon 
approval. 


1  In  Buswell  v.  Bicknell  (1840),  17 
Me.  344,  35  Am.  Dec.  262,  a  cow  had 
been  delivered  to  a  person  who  was  to 
pay  $16  for  her  by  the  4th  of  the 
following  April  or  return  the  cow 
and  pay  $4  for  her  use.  Held,  a  sale. 
InHolbrook  v.  Armstrong,  10  Me.  31, 
cows  had  been  delivered  to  be  re- 
turned or  paid  for  at  the  end  of  two 
years.  Held,  a  sale.  In  Southwick  v. 
Smith,  29  Me.  228,  hides  had  been 
delivered  and  a  note  given  for  the 
amount,  with  an  agreement  that  if 
the  note  was  not  paid  the  leather 
made  from  the  hides  should  be  re- 
turned. Held,  a  sale.  See  also  Per- 
kins v.  Douglas,  20  Me.  317.  In 
Crocker  v.  Gullifer,  44  Me.  491,  69 
Am.  Dec.  118,  it  is  said:  "The  gen- 
eral proposition  that  a  delivery  of  an 
article  at  a  fixed  price,  to  be  paid  for 
or  returned,  constitutes  a  sale,  is  not 
questioned.  When  the  option  is  with 
the  party  receiving,  to  pay  for  or  re- 
turn the  goods  received,  the  uniform 
current  of  authorities  is  that  such 
alternative  agreement  is  a  sale." 

Where  goods  are  shipped  from  one 
State  to  another  under  a  contract 
that  the  vendee  is  to  pay  for  them 
unless  within  thirty  days  he  finds 
they  are  not  as  represented,  it  is  a 
sale  of  the  goods  in  the  first  State. 
Schlesinger  v.  Stratton,  9R.L  578. 


So  in  Wind  v.  Her  (1895),  93  Iowa, 
316,  61  N.W.  R.  1001,  27  L.  R.  A.  219, 
where  plaintiffs  bought  liquors  from 
defendants,  paid  the  freight  on  them 
and  credited  defendants  immediately 
upon  the  receipt  of  the  goods,  with 
the  understanding  that  they  might 
return  the  goods  if,  after  test,  they 
were  not  of  the  quality  ordered,  it 
was  held  that  there  was  a  completed 
sale,  title  passing  when  goods  were 
delivered  to  the  carrier  for  trans- 
portation, with  an  option  in  plaintiff 
to  return  them  if  they  did  not  meet 
the  required  test.  Called  a  "  sale  or 
return  "  in  contradistinction  from  a 
conditional  sale. 

In  Hotchkiss  v.  Higgins  (1884),  52 
Conn.  205, 52  Am.  R.  582,  an  innkeeper 
sent  to  a  wholesale  liquor  dealer  an 
order  for  liquors  named,  saying  that 
he  wanted  it  for  a  certain  occasion, 
and  "  what  is  used  I  account  for  and 
ship  rest  back  to  you."  Held,  that 
the  title  passed  to  the  innkeeper  so 
that  the  goods  were  liable  to  his 
creditors,  and  that  evidence  that 
neither  party  intended  this  result 
was  inadmissible. 

2  Thus,  for  example,  see  Crocker  v. 
Gullifer  (1858),  44  Me.  491 :  Mowbray 
v.  Cady  (1875),  40  Iowa,  604;  Wright 
v.  Barnard  (1893),  89  Iowa,  166,  56  N. 
W.  R.  424. 


36 


561 


§§  680-682.]  LAW    OF   SALE.  [book   II. 

§  680.  Form  of  option.— The  option  in  these  cases  usually 
is  that  if  the  buyer  does  not  like,  or  is  not  satisfied  with,  the 
goods  he  may  return  them;  and  where  this  is  the  stipulation 
the  option  of  the  buyer  is  absolute,  and  the  reasons  for  his  ac- 
tion are  not  to  be  investigated.1  But,  on  the  other  hand,  the 
stipulation  may  not  give  the  buyer  so  absolute  an  option.  Thus, 
for  example,  if  the  contract  is  that  a  machine  may  be  returned 
if  it  will  not  do  good  work,  the  right  to  return  it  will  depend 
upon  that  fact.2  But  if  the  contract  is  that  the  machine  may 
be  returned  if  it  does  not  suit  the  buyer  and  answer  his  pur- 
pose he  may  return  it  if  he  is  not  suited,  though  it  might  an- 
swer his  purpose.3  Many  other  cases  might  be  suggested,  but 
the  question  ordinarily  presents  itself  as  one  aspect  of  a  war- 
ranty, and  further  illustrations  will  be  deferred  until  that  sub- 
ject is  considered.4 

§681.  Within  what  time  option  to  be  exercised.— Con- 
tracts of  this  nature  are  usually  specific  and  fix  the  time  at  or 
within  which  the  option  is  to  be  exercised;  but  here,  as  in  the 
former  cases,  where  no  time  is  fixed  by  the  contract,  a  reason- 
able time  will  be  presumed  by  the  law.5    Hence, — 

§682.  Effect  of  not  returning  in  time  required.— The 

failure  of  the  party  receiving  them,  without  reasonable  excuse, 
to  return  the  goods  within  the  time  specified,  unless  such  re- 
turn be  waived  or  the  time  extended,  makes  the  sale  absolute,6 

i  Goodrich  v.  Van  Nortwick  (1867),  4  See  post,  §  1222  et  seq. 

43  111.  445.  5  Moss  v.  Sweet,  16  Q.  B.  493 ;  Childs 

2  Manny  v.  Glendinning  (1862),  15  v.  O'Donnell  (1891),  84  Mich.  533,  47 
Wis.  50.  Though  if  the  seller  uncon-  N.  W.  R.  1108;  Schlesinger  v.  Strat- 
ditionally  receives  the  goods  back  he  ton,  9  R.  I.  578;  Columbia,  etc.  Co.  v. 
will  acquiesce  in  the  rescission  and  Beckett  (1893),  55  N.  J.  L.  391,  26  Atl. 
cannot  raise  the  question  of  perform-  R.  888;  Gale  Mfg.  Co.  v.  Moore  (1891), 
ance.  46  Kan.  324,  26  Pac.  R.  703;  Luger 

3  Goodrich  v.  Van  Nortwick,  siqwa.  Furniture  Co.  v.  Street  (1897),  6  Okl. 
Compare  the  very  similar  cases  in  312,  50  Pac.  R.  125. 

Michigan:   Clark  v.  Rice,  46  Mich.        «  Stevens  v.  Hertzler  (1895),  109  Ala. 
308,  9  N.  W.  R.  427,  and  Piano  Mfg.    423,  19  S.  R.  838. 
Co.  v.  Ellis,  68  Mich.  101,  35  N.  W.  R.        In  House  v.  Beak  (1892),  141   111. 
841.  290,  30  N.  E.  R.  1065,  33  Am.  St,  R.  307, 

562 


CH.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS. 


[§  CS2. 


and  the  price  may  be  recovered  as  for  goods  sold  and  delivered.1 
A  fortiori  is  the  sale  absolute  where  the  party  expressly  refuses 


to  return  the  goods.2 


plaintiffs  were  wholesale  merchants, 
who  sold  goods  to  defendants  to  be 
disposed  of  at  retail,  only  such  goods 
as  were  sold  by  defendants  to  be  paid 
for,  the  rest  to  be  returned.  The  de- 
fendants kept  the  goods  for  more 
than  three  years  without  offering  to 
return  them.  Held,  that  the  property 
in  the  goods  passed  at  once  to  the 
purchaser,  subject  to  his  option  to 
return  them  within  a  reasonable 
time.  The  goods  were  not  returned 
within  a  reasonable  time  and  defend- 
ants are  therefore  liable  as  upon  an 
absolute  sale. 

In  Buckstaff  v.  Russell  &  Co.  (1897), 
49  U.  S.  App.  253,  25  C.  C.  A.  129,  79 
Fed.  R.  611,  the  purchasers  of  ma- 
chines, under  a  contract  authorizing 
rescission  if  they  were  dissatisfied 
after  a  fair  and  honorable  trial, 
sought  to  defend  an  action  for  the 
price  on  the  ground  of  rescission, 
though  they  had  used  the  machines 
for  three  and  one-half  years  after 
their  alleged  notice  to  the  seller. 
Held,  that  their  conduct  was  a 
waiver  of  the  contract  right  of  re- 
scission. 

In  Waters  Heater  Co.  v.  Mansfield 
(1875),  48  Vt.  378,  defendants  bought 
-a  steam  heater  from  plaintiff,  agree- 
ing to  attach  it  to  their  works  and 
try  it  for  thirty  days.  If  it  proved 
satisfactory  they  were  to  pay  for  it 
or  return  it.  They  did  not  attach  it, 
but  waited  to  see  how  another  of 


plaintiff's  heaters  which  they  knew 
about  would  work.  Held,  that  such 
keeping  it  was  an  election  to  pur- 
chase. 

In  Spickler  v.  Marsh  (1877),  36  Md. 
222,  a  party  agreed  to  take  machin- 
ery on  trial.  If  it  suited  him  he  was 
to  pay  for  it;  if  it  did  not  he  was  to 
return  it.  He  neither  returned  it  nor 
expressed  any  dissatisfaction.  Held, 
that  the  seller  might  treat  the  trans- 
action as  an  absolute  sale.  Called  by 
the  court  "a  sale  or  return." 

In  Prairie  Farmer  Co.  v.  Taylor 
(1873),  69  111.  440,  appellee  sold  a  print- 
ing press  to  appellant  with  the  agree- 
ment that  he  was  to  keep  and  use  it 
thirty  days,  appellee  to  keep  it  in 
order,  "to  determine  whether  the 
warrant  [to  give  complete  satisfac- 
tion] is  good,  and  whether  you  will 
keep  the  prass  or  not."  Held,  that  if 
the  purchaser  kept  the  machinery 
thirty  days  without  notice  of  his  elec- 
tion not  to  keep  the  same,  he  was  re- 
sponsible for  the  price.  "The  sale 
was  complete  unless  the  company  de- 
termined not  to  keep  it," 

In  Thomson-Houston  Electric  Co. 
v.  Brush-Swan  Co.  (1887),  31  Fed.  Rep. 
536.  plaintiff  sold  and  delivered  to  de- 
fendant certain  machinery  for  elec- 
tric lighting,  to  be  set  up  by  defend- 
ant and  paid  for  thirty  days  after 
successful  operation.  Held,  that  the 
evidence  "  tends  to  show  such  a  trans- 
action as  would  pass  the  property  in 


i  Moss  v.  Sweet  (1852),  16  Q.  B.  493, 
71  Eng.  Com.  L.  493;  Schlesinger  v. 
•Stratton  (1870),  9  R.  I.  578;  Jameson 
v.  Gregory  (1863),  4  Mete.  (Ky.)  363; 


Bianchi  v.  Nash  (1836),  1  M.  &  W.  545; 
Beverley  v.  Gas  Co.  (1837),  6  A.  &  E. 
829.  33  Eng.  Com.  L.  434. 
2  Jones  v.  Wright  (1873),  71  111.  61. 


563 


§  683.] 


LAW    OF    SALE. 


[BOOK   II. 


§  683.  How  when  party  puts  it  out  of  his  power  to  return. 

Where  the  party  receiving  the  goods  has  put  it  out  of  his  power 
to  return  them  within  the  time  agreed  upon,  the  sale  becomes 
absolute.1  Thus,  where  a  horse  had  been  delivered  to  be  paid 
for  or  returned  within  a  specified  time,  and  the  party  receiving 
it  so  abused  it  that  it  was  materially  injured  and  lessened  in 
value,  the  court  said:  "  The  sale  was  on  a  condition  subsequent, 
that  is,  on  condition  he  did  not  elect  to  keep  the  horse,  to  re- 
turn him  within  the  time  limited.  Being  on  a  condition  sub- 
sequent, the  property  vested  presently  in  the  vendee,  defeasible 
only  on  the  performance  of  the  condition.  If  the  defendant 
in  the  meantime  disabled  himself  from  performing  the  condi- 
tion—  and  if  the  horse  was  substantially  injured  by  the  de- 
fendant by  such  abuse  he  would  be  so  disabled, —  then  the  sale 
became  absolute,  the  obligation  to  pay  the  price  became  uncon- 
ditional, and  the  plaintiff  might  declare  as  upon  an  indebitatus 
assumpsit  without  setting  out  the  conditional  contract." 2 


the  goods  themselves,"  and  defend- 
ant's failure  to  set  up  and  test  the 
machinery  cannot  defeat  plaintiffs 
action  for  the  price. 

In  Snody  v.  Shier  (1891),  88  Mich 
304,  50  N.  W.  R.  252,  a  harvesting 
machine  was  purchased  under  the 
condition  that  it  should  be  return- 
able if  defective,  but  the  return  must 
be  before  the  harvesting  season  was 
over.  It  was  kept  till  the  next  sea- 
son for  a  further  trial  with  the  vend- 
or's consent.  Held,  that  the  vendor 
waived  the  condition  as  to  return. 

In  Colles  v.  Swensberg  (1892),  90 
Mich.  223,  51  N.  W.  R.  275,  plaintiffs 
supplied  defendants  with  a  boiler 
filter  to  be  returned  within  one  year 
if  unsatisfactory.  Defendants  noti- 
fied plaintiffs  that  it  was  unsatisfac- 
tory, and  asked  for  shipping  direc- 
tions, but  they  were  not  sent.  Held, 
that  plaintiff  waived  the  condition 
tor  reshipment. 


1  Ray  v.  Thompson  (1853),  12  Cush. 
(Mass.)  281,  59  Am.  Dec.  187.  A  loan 
attended  with  a  continuous  offer  of 
sale  at  a  fixed  price  may  be  con- 
verted into  a  sale  at  any  time  before 
the  offer  is  withdrawn.  And  a  sale 
by  the  borrower  to  a  third  person 
signifies  that  the  offer  is  accepted. 
Windsor  v.  Cruise  (1887),  79  Ga.  635, 
7  S.  E.  R.  141. 

2  Ray  v.  Thompson,  supra.  But 
this  rule  was  held  not  to  apply  where 
the  horse,  within  the  time  limited, 
was  injured  without  the  vendee's 
fault  and  returned  in  such  injured 
condition.  Head  v.  Tattersall  (1871), 
L.  R.  7  Ex.  7.  A  sale  of  personal 
property  on  condition  that  the  vendee 
may  return  it  in  a  certain  contin- 
gency becomes  absolute  if  the  vendee 
disables  himself  from  returning  it 
by  selling  or  mortgaging  the  prop- 
erty. In  re  Ward's  Estate  (1894),  57 
Minn.  377,  59  N.  W.  R.  311. 


564 


CH.  III.]       CONDITIONAL  SALE  OF  SPECIFIC  CHATTELS.       [§§  6S4,  685. 

§684.  How  when  return  becomes  impossible.— The  same 
result  ensues  where  the  return,  without  the  fault  of  the  seller, 
has  become  impossible.  Thus  where  goods  sold,  subject  to  the 
rio-ht  of  the  vendee  to  return  certain  of  them  if  he  liked,  were 
delivered  to  a  common  carrier  for  transportation  to  the  vendee, 
but  were  lost  in  transit,  it  was  held  to  be  a  case  of  present  sale 
subject  to  a  condition  subsequent,  and  that  the  loss  must  fall 
upon  the  vendee.1 

But  in  an  English  case,2  already  cited,  where  a  horse  was 
sold  with  the  right  to  return  it  if  it  did  not  conform  to  the  de- 
scription, one  of  the  judges  said:  "As  a  general  rule,  damage 
from  the  depreciation  of  a  chattel  ought  to  fall  on  the  person 
who  is  the  owner  of  it.  Now  here  the  effect  of  the  contract 
was  to  vest  the  property  in  the  buyer  subject  to  a  right  of  re- 
scission in  a  particular  event,  when  it  would  revest  in  the 
seller.  I  think  in  such  a  case  that  the  person  who  is  eventu- 
ally entitled  to  the  property  in  the  chattel  ought  to  bear  any 
loss  arising  from  any  depreciation  in  its  value  caused  by  an  ac- 
cident for  which  nobody  is  in  fault." 

§  685.  How  return  effected  —  Tender  —  Effect.—  The  right 
of  the  vendee  to  return  the  goods,  under  the  conditions  agreed 
upon,  is  an  absolute  one,  and  upon  such  return  the  title  vests 
again  in  the  seller.3  A  stipulation  for  such  a  return,  it  is  usu- 
ally held,  "  does  not  amount  in  law  to  a  contract  to  repurchase, 
but  is,  upon  the  exercise  of  the  option,  a  rescission  of  the  con- 
tract, and  the  title  at  once  vests  in  the  original  vendor."4 

i  Foley  v.  Felrath  (1893),   98  Ala.  months.    Held,  that  the  loss  was  on 

176,  13  S.  R.  485,  39  Am.  St.  R.  39.   In  the  vendees,  for  there  could  be  no 

Scroggin  v.  Wood  (1893),  87  Iowa,  497,  breach  of  warranty  before  the  time 

54  N.  W.  R.  437,  a  stallion  was  sold  for  making  the  test  had  elapsed, 

with  a  warranty  that  he  was  an  av-  2  Head  v.  Tattersall  (1871),  L.  R.  7 

erage  breeder,  but  it  was  expressly  Ex.  7,  cited  supra. 

agreed  that  the  test  should  not  be  3  Laubach  v.  Laubach  (1873),  73  Pa. 

considered   complete    until  he  had  St.  387;  Gay  v.  Dare  (1894),  103  CaL 

been  used  two  years.     The  vendees  454,  37  Pac.  R.  466. 

were  to  bear  all  risk  of  accident  and  4  Gay  v.  Dare,  supra.     In  Laubach 

disease  while  the  horse  was  in  their  v.   Laubach,   supra,   Sharswood,   J., 

possession.     The  horse  died  in  four  said:    "No   one    has  ever  supposed 

565 


§  6S6.]  LAW    OF    SALE.  [BOOK    II. 

If  the  vendor  refuses  to  receive  back  the  goods,  a  tender  of 
them  establishes  the  vendee's  right,1  and  he  may  hold  the 
goods  for  the  vendor.2  But  if  the  vendee  acquiesces  in  the 
vendor's  refusal  to  receive  them,  no  restoration  of  the  title  will 
be  effected.3 

8.  Sale  with  Option  in  Vendor  to  Retake. 

§  686.  Title  in  vendor  until  option  exercised. — In  previous 
sections i  exhaustive  discussion  has  been  had  of  the  so-called 
conditional  sale  in  which  the  vendor,  while  parting  with  the 
possession,  has  retained  the  title  as  security  for  the  price;  and 
it  has  there  been  seen  that  no  title  passes  to  the  verdee  until 
the  condition  has  been  performed  or  performance  has  been 
waived. 

But  it  is  entirely  competent  for  the  parties  to  make  an  arrange- 
ment which  shall  reverse  these  conditions,  namely,  that  the 
title  shall  at  once  pass  subject  to  an  option  on  the  part  of  the 
seller  to  subsequently  reclaim  the  goods  for  reasons  specified. 
Until  this  right  has  been  exercised,  the  title  is  in  the  vendee, 
and  he  may  convey  an  indefeasible  title  to  a  bona  fide  pur- 
chaser,5 or  the  goods  may,  it  is  said,  be  seized  to  satisfy  the 
vendee's  creditors.6 

that  this  was  to  be  construed  as  a  Allen  (Mass.),  491.  Here  a  steam  en- 
contract  to  repurchase,  or  that  upon  gine  and  boiler  were  sold  as  of  a  cer- 
the  exercise  by  the  vendee  of  the  tain  power;  part  payment  was  made, 
option  reserved,  the  title  does  not  and  it  was  agreed  that  if  they  did 
revest  in  the  original  vendor,  and  not  prove  of  the  power  specified  the 
the  right  to  the  price  in  the  vendee,  vendor  was  to  take  them  back  and 
This  is  the  legal  effect  of  the  rescis-  repay  the  money,  in  default  of  which 
sion  of  a  contract,  whether  the  re-  the  vendee  might  sell  them.  They 
scission  be  by  reason  of  an  inherent  proved  inefficient,  but  the  vendor 
vice,  such  as  fraud,  or  by  virtue  of  refused  to  take  them  back.  Later  the 
the  terms  of  the  contract  itself,  vendee  rented  them  to  the  vendor, 
Smethurst  v.  Woolston,  5  W.  &  S.  who  mortgaged  them.  Held,  that 
106."  the  title  was  in  the  vendee. 

JGay  v.  Dare,  supra;  Laubach  v.  4See  ante,  %%  358-650. 

Laubacb,  supra;  Thorndike  v.  Locke  5See  ante,  §  146. 

(1867),  98  Mass.  340.  6  Moline  Plow  Co.  v.  Rodgers  (1894), 

2  Gay  v.  Dare,  supra.  53  Kan.  743,  37  Pac.  R.  1 11. 

3  Stevens  v.  Cunningham  (1862),  3 

566 


CH.  III.]       CONDITIONAL   SALE  OF  SPECIFIC  CHATTELS.       [§§   687-689. 

§  687,  Waiver  of  option. —  And  where  the  option  is  reserved 
for  the  purpose  of  securing  the  payment  of  the  purchase  price, 
and  as  an  alternative  to  action  for  its  recovery,  a  suit  for  the 
price  will  be  deemed  to  be  such  an  election  of  remedies  as  will 
preclude  the  subsequent  retaking  of  the  goods.1 


9.  Sale  ivitli  Right  in  Vendor  to  Repurchase. 

§  688.  Title  in  vendee  until  right  exercised  —  There  may 
also  be  contracts  of  present  sale  reserving  to  the  seller  the  right 
to  repurchase  the  goods  upon  terms  agreed  upon.  In  practice 
it  is  difficult  often  to  determine  whether  a  given  contract  hav- 
ing some  of  these  aspects  constitutes  a  pledge,  a  mortgage,  a 
sale  conditioned  to  be  void  upon  the  payment  of  a  certain  sura, 
or  a  sale  with  the  privilege  of  repurchase.  This  is  a  difficulty 
to  be  dealt  with  in  view  of  the  terms  of  the  contract,  the  cir- 
cumstances of  the  case  and  the  evident  intention  of  the  parties.2 
If  it  be  found  to  constitute  a  present  sale  with  a  privilege  of 
repurchase,  the  title  passes  at  once,  subject  to  the  right  of  the 
seller  to  regain  it  upon  complying  with  the  conditions.3 

§  689.  Such  contracts  strictly  construed. —  "Such  defea- 
sible purchases,"  it  has  been  said,4  "though  narrowly  watched, 
are  valid,  and  are  to  be  taken  strictly  as  independent  dealings 
between  strangers;  and  the  time  limited  for  the  repurchase 
must  be  precisely  observed,  or  the  vendor's  right  to  reclaim 
his  property  will  be  lost."  "  There  is  good  reason,"  it  is  said 
again,  in  commenting  upon  this  rule,5  "  why  such  sale  should 
be  '  narrowly  watched  '  and  '  precisely  observed.'    There  is  no 

i  Moline  Plow  Co.  v.  Rodgers,  supra.  3Lucketts  v.  Townsend  (1848),  3 

2  See  Eiland  v.  Radford  (1845),  7  Tex.  119,  49  Am.  Dec.  723. 

Ala.  724,  42  Am.  Dec.  610;  Hickman  *  4  Kent's  Com.  144 

v.  Cantrell  (1836),  9  Yerg.  (Tenn.)  172,  5  Beck  v.  Blue  (1868),  42  Ala.  32,  94 

30  Am.  Dec.  396;  Murphy  v.  Bare-  Am.   Dec.  630.    See  also  Slowey  v. 

field  (1855),  27  Ala.  634;  Swift  v.  Swift  McMurray  (1858),  27  Mo.  113,  72  Am. 

(1860),  36  Ala.  147;  Com.  v.  Reading  Dec.  251;  Sewall  v.  Henry  (1846),  9 

Savings  Bank  (1884),  137  Mass.  431.  Ala.  24. 

567 


§§  690-692.]  LAW   OF   SALE.  [book   II. 

obligation  on  the  part  of  the  vendor  to  repurchase.  Should 
the  property  appreciate  in  value,  he  may  exercise  his  right 
and  realize  the  profit;  should  it  depreciate  in  value,  or  be  in- 
jured or  destroyed,  he  may  decline  to  repurchase,  and  permit 
the  loss  to  fall  exclusively  on  the  vendee.1  Such  being  the 
relative  situation  of  the  two  parties  to  such  a  contract,  the  law 
requires  promptness  and  precision  on  the  part  of  the  vendor  in 
the  assertion  of  his  right  to  repurchase,  especially  when  the 
vendee  pays  a  fair  valuation  for  the  property." 

§  690.  Within  what  time  right  exercised.— Where  the 
terms  of  the  contract  fix  the  time  within  which  the  vendor 
shall  repurchase,  that  time  must  be  observed;2  if  no  time  is 
so  fixed,  a  reasonable  time  at  least  will  be  implied.3 

§  691.  Interests  in  goods  before  repurchase.— The  title 
thus  being  in  the  vendee  subject  only  to  the  seller's  privilege 
of  repurchase,  the  goods  are  nofe  liable  for  the  seller's  debt,4 
and  a  bona  fide  purchaser  from  the  vendee  would  obtain  a  per- 
fect title.5 

10.  Sale  to  be  Void  if  Vendor  Pays. 

§  692.  Such  agreements  valid.— There  may  also  be  a  pres- 
ent sale  subject  to  a  condition  that  the  transfer  shall  be  void  in 
case  the  seller  pays  to  the  buyer  a  sum  specified,  as  where  upon 

1  See  Com.  v.  Reading  Savings  Bank  1867,  S.  sold  the  colt;  whereupon  M. 

(1884),  137  Mass.  431,  443.  Drought  trover.     Held,  a  contract  of 

In  Moore  v.  Sibbald  (1869),  29  Up.  sale  with  privilege  of  repurchase,  and 

Can.  Q.  B.  487,  there  was  the  follow-  not  a  mortgage;   and  plaintiff  not 

ing  agreement:  "  I,  S.,  give  .$20  to  M.  having    paid    in   time    had  lost  his 

for  the  colt  which  I  have  in  posses-  right;  but  plaintiff  was  held  entitled 

sion;  but  I,  said  S.,  promise  to  give  to  a  return  of  the  $15. 

back  the  colt  to  M.  if  he  will  pay  the  2  Moore  v.  Sibbald  (1869),  29  Up. 

same  sum  with  12$  interest,  on  or  be-  Can.  Q.  B.  487. 

fore  May  1, 1866.   If  not  paid  the  colt  3  Beck  v.  Blue  (1868),  42  Ala.  32,  94 

will  be  S.'s  property,  then  he  can  do  Am.  Dec.  630. 

with  it  as  he  likes  or  keep  it  for  him-  4  Mahler  v.  Schloss  (1877),  7  Daly 

self."    M.  paid  S.  $15,  but  failed  to  (N.  Y.),  291. 

pay  the  balance,  and  in  September,  5  See  ante,  §  146. 

568 


On.  III.]  CONDITIONAL    SALE    OF    SPECIFIC    CHATTELS.  [§  693. 

the  sale  of  a  slave  there  was  indorsed  upon  the  bill  of  sale,  ab- 
solute in  its  terras,  the  following:  "N.  B.  If  the  above-bound 
P.  pay  up  to  the  above-named  M.  the  sum  of  four  hundred  dol- 
lars within  twelve  months  from  the  date  hereof,  the  above  bill 
of  sale  to  be  void,  and  the  negro  boy  returned." ' 

These  are  true  conditional  sales,  i.  e.,  sales  upon  condition 
subsequent,  and  are  practically  equivalent  to  those  considered 
in  the  preceding  subdivision.  They  are  entirely  valid,2  though 
there  is  constantly  difficulty  in  distinguishing  them  from  chat- 
tel mortgages.  "  A  mortgage  and  a  conditional  sale  are  nearly 
allied  to  each  other,  and  it  is  frequently  difficult  to  say  whether 
a  particular  transaction  is  the  one  or  the  other.  The  differ- 
ence between  them  is  that  the  former  is  a  security  for  a  debt, 
and  the  latter  is  a  purchase  for  a  price  paid  or  to  be  paid,  to 
become  absolute  on  a  particular  event;  or  a  purchase  accom- 
panied by  an  agreement  to  resell  upon  particular  terms.  It  is 
the  latter  kind  that  runs  so  nearly  into  a  mortgage.  .  .  . 
Courts  lean  toward  considering  them  mortgages."  3 

11.  Sale  to  oe  Void  if  Vendee  Does  Not  Pay. 

§693.  Such  agreements  valid. —  And  finally,  there  may 
be,  as  has  been  already  noticed,4  cases  of  present  sale  coupled 
with  a  condition  subsequent  that  the  sale  shall  be  void  in  case 
the  purchaser  does  not  pay.  These  cases  are  rare, —  the  usual 
form  being  that,  already  fully  discussed,  of  contracts  of  sale 
upon  the  precedent  condition  that  the  title  shall  not  pass  until 
the  price  is  paid. 

1  Poindexter  v.  McCannon  (1830),  1  3  Poindexter  v.  McCannon,  supra. 

Dev.  (N.  C.)  Eq.  373, 18  Am.  Dec.  591.  See  also  Weathersley  v.  Weathersley 

2See     Poindexter    v.    McCannon,  (1866),  40  Miss.  462,  90  Am.  Dec. 344; 

supra;  Eiland  v.   Radford   (1845),  7  Morrow  v.  Turney  (1859),  35  Ala.  131 ; 

Ala.  724,  42  Am.  Dec.  610;  Logwood  Bishop    v.   Rutledge    (1832),  7  J.  J. 

v.  Hussey  (1877),  60  Ala.  417;  Haynie  Marsh.   (Ky.)   217;    Hart    v.  Burton 

v.  Robertson  (1877),  58  Ala.  37;  Pee-  (1832),  7  J.  J.  Marsh.  322. 

pies  v.  Stolla  (1876),  57  Ala.  53;  Magee  4  See  ante,  §  572. 
v.  Catching  (1857),  33  Miss.  672;  Pierce 
v.  Scott  (1881),  37  Ark.  308. 

569 


§  693.] 


LAW    OF    SALE. 


[book  IT. 


Such  sales  upon  condition  subsequent  are,  however,  valid  as 
between  the  parties,  though  the  seller  runs  the  risk  of  losing 
his  claim  if  the  goods  are  seized  by  the  creditors  of  the  vendee 
or  sold  by  him  to  a  hona  fide  purchaser  before  condition 
broken.1 


i  See  Murch  v.  Wright  (1868),  46  111. 
487,  95  Am.  Dec.  455;  Lucas  v.  Camp- 
bell (1878),  88  111.  447;  Gerow  v.  Cas- 
tello  (1888),  11  Colo.  560,  19  Pac.  R. 
505,  7  Am.  St.  R.  260  [though  see 
Jones  v.  Clark  (1894),  20  Colo.  353,  38 


Pac.  R.  371].  See  also  Vincent  v. 
Cornell  (1832),  13  Pick.  (Mass.)  294; 
Day  v.  Bassett  (1869),  102  Mass.  445; 
Currier  v.  Knapp  (1875),  117  Mass. 
324;  Newhall  v.  Kingsbury  (1881),  131 
Mass.  445. 


570 


CHAPTER  IV. 


OF    CONTRACTS    RESPECTING    EXISTING    CHATTELS    NOT   YET 

IDENTIFIED. 


§  694.  Purpose  of  this  chapter. 
L  Contracts  for  Sale  of  Portion 
of  Ascertained  Mass. 

695.  Before  title  can  pass  the  goods 

must  be  ascertained. 

696.  Method  of  identification  im- 

material. 

697.  Contracts  respecting  part  of 

a  mass  of  unequal  constitu- 
ents. 

698.  These  cases  form  class  by 

themselves. 

699-702.  Essential  features  of 

cases  of  this  class. 

703.  How  when  whole  mass 

delivered  to  vendee. 

704.  Contracts  respecting  part  of  a 

mass  of  like  constituents. 

705.  Intention  material. 

706.  Usage  may  affect. 

707-709.  How    question   af- 
fected by  usage. 

710.  How  when  no  usage  governs. 

711,  712.  Kimberly  v.  Patehin 

as  a  type. 

713.  Cases  holding  separation 

necessary. 

714,  715.  Seudder  v.  Worster 

as  a  type. 
716,  717.  The  weight  of  au- 
thority. 
IL  Contracts  for  Sale  of  Goods 
of  Certain  Kind  but  Goods 
Not  Yet  Identified. 

718.  Nature  of  subject. 

719.  Under    what    circumstances 

question  arises. 

720.  What  to  be  included  here. 


1.  Of  Appropriation  in  General. 
§  721.  General  necessity  for  appro- 
priation. 

722.  What  meant   by  appropria- 

tion. 

723.  Who  interested  in  question. 
724, 725.  Who  may  make  the  ap- 
propriation. 

726.  What  constitutes   appropria- 

tion in  general. 

727.  Appropriation  consists  of 

acts,  not  mere  intention. 

728.  Acts  must  be  in  fulfill- 
ment of  contract. 

729.  Assent  to  the  appropriation. 

730.  Buyer's  assent  made  nec- 
essary by  terms  of  contract. 

731.  Buyer's  assent  required 

by  implication  —  Sale  by 
sample. 

732.  How  buyer's  assent  given 

when  required. 

2.  Of  Appropriation  when  Seller  is  to 

Deliver  Goods. 

733.  How  when  seller  is  to  select 

and  deliver  the  goods. 

3.  Of  Appropriation  ichere  Buyer  is 

to  Come  for  Goods. 

734.  How  when  buyer  is  to  come 

and  get  the  goods. 

735.  Effect  of  putting  goods 

into  buyer's  conveyance. 

4.  Of  Appropriation  where  Seller  is 

to  Send  Goods  by  Carrier. 
736-739.  How  when  seller  is  to  send 

goods  by  carrier. 
740.  Intention  governs. 


571 


694,  695.] 


LAW    OF    SALE. 


[BOOK    II. 


741.  Payment  of  freight  as 

evidence. 

742.  Agreement  that  goods 

shall  not  be  paid  for  unless 
they  arrive. 

743-745.  Further  of  the  inten- 
tion. 

746.  Goods  must  be  sent  in  con- 

formity with  order. 

747.  Due  care  must  be  used  in  ship- 

ping. 


§  748.  R?medy  over  against  car- 
rier must  be  preserved. 

749.  Duty  to  insure. 

750.  What  constitutes  delivery  to 

the  carrier. 

5.   Of  Appropriation  where   Goods 
Consigned  on  Account  of  Previ- 
ous Advances. 
751, 752.  How  when  goods    con- 
signed on  account  of  previ- 
ous advances. 


§  694.  Purpose  of  this  chapter. —  Having  in  the  preceding 
chapters  dealt  with  unconditional  contracts  respecting  specific 
chattels,  and  also  with  conditional  contracts  respecting  specific 
chattels,  there  remains  now  to  be  considered  such  contracts  as 
may  be  made  for  the  sale  of  chattels  which,  while  they  are  in 
existence,  have  not  yet  been  ascertained  and  identified  as  the 
particular  ones  to  which  the  contract  is  to  apply. 

Of  contracts  of  this  general  kind  there  are  two  chief  classes, 
viz: 

I.  Contracts  for  the  sale  of  a  portion  of  an  ascertained  mass 
of  goods. 

II.  Contracts  for  the  sale  of  chattels  of  a  certain  kind,  which, 
however,  have  not  yet  been  set  apart,  identified,  or  otherwise 
c;  appropriated  "  to  the  contract. 

Somewhat  analogous  to  the  contracts  of  the  latter  class  are 
contracts  which  contemplate  the  manufacture  or  production  of 
a  chattel  of  the  kind  agreed  upon  in  the  contract,  and  which, 
when  manufactured  or  produced,  is  to  be  supplied  in  pursu- 
ance and  performance  of  that  contract.  Undertakings  of  this 
nature  will  be  reserved  for  treatment  in  the  following  chapter. 

I. 

Contracts   for   TnE    Sale  of  a  Portion   of  an  Ascertained 

Mass. 
§  605,  Before  title  can  pass  the  goods  niust  he  ascertained. 

As  has  been  already  seen,1  it  is  absolutely  indispensable  to  a 

l  See  ante,  §  198. 
572 


CH.  IV.]  EXISTING    CHATTELS    XOT    YET    IDENTIFIED.       [§§  690-7. 

completed  sale  that  the  chattel  which  is  the  subject  of  the 
sale  shall  be  ascertained  and  identified.  The  minds  of  the  par- 
ties must  meet  in  reference  to  some  specific  chattel,  or  other- 
wise there  will  remain  but  a  mere  agreement  to  sell,  which 
has  yet  to  be  applied  to  some  specific  chattel  in  order  to  con- 
summate the  sale.  As  is  said  by  Bigelow,  C.  J.,  "  Until  the  par- 
ties are  agreed  as  to  the  specific,  identical  goods,  the  contract 
can  be  no  more  than  an  agreement  to  supply  goods  of  a  cer- 
tain kind  or  answering  a  particular  description.  The  reason 
of  this  is  obvious.  There  can  be  no  transfer  of  property  until 
the  parties  have  ascertained  and  agreed  upon  the  articles  sold. 
Before  they  are  designated  and  set  apart  in  some  form,  there 
is  nothing  to  which  the  contract  of  sale  can  attach  or  on  which 
it  can  operate."  J 

§  6%.  Method  of  identification  immaterial. —  The  method 
of  accomplishing  the  identification  is  immaterial;  the  fact  is 
the  essential  thing.  The  contract  itself  may  afford  the  neces- 
sary means  of  identification,  or  that  result  may  be  left  to  be 
determined  by  subsequent  acts  or  events;  but  until  in  some 
way  the  chattels  are  identified,  *no  title  can  pass.2 

§  697.  Contracts  respecting  part  of  a  mass  of  unequal  con- 
stituents.—  "When  the  contract  is  for  the  sale  of  a  portion  to 
be  selected  from  a  mass  made  up  of  constituents  of  different 
kinds,  weights,  quantities  or  values,  it  is  obvious  that  the  title 
cannot  ordinarily  pass  until  the  particular  portion  which  is  the 
subject  of  the  contract  has  been  distinguished  from  the  hetero- 
geneous mass,  unless,  perhaps,  in  the  case  of  a  contract  for  the 
sale  of  a  portion  to  be  taken  from  the  mass  of  constituents  "  as 

1  Gardner  v.  Lane  (1865),  9  Allen  of  which,  the  contract  recited,  had 
(Mass.),  492,  85  Am.  Dec.  779,  citing  been  identified  by  the  parties,  but 
Aldridge  v.  Johnson,  7  El.  &  B.  885;  the  other  lots  were  not  identified  in 
Scudder  v.  Worster,  11  Cush.  (Mass.)  any  way.  In  replevin  by  the  vendee 
573.  for  the  whole  amount,  it  was  held 

2  In  Joseph  v.  Braudy,  112  Mich,  that  the  contract  was  entire,  that  the 
579.  70  N.  W.  R.  1101,  it  appeared  third  and  fourth  lots  had  not  been 
that  there  was  a  written  contract  identified,  and  that  no  title  to  any 
for  the  sale  of  four  lots  of  iron,  two  part  of  the  iron  passed. 

573 


§§  698-701.]  LAW  OF  sale.  [book  II. 

they  run,"  as  the  saying  is,— a  question  which  would  be  ger- 
mane to  that  to  be  considered  in  the  following  section. 

§  698.  These  cases  form  a  class  by  themselves.—  It 

will  be  obvious,  upon  reflection,  that  cases  of  the  kind  now 
under  consideration  form  a  class  by  themselves  distinct  from 
those  to  be  considered  in  the  following  section  where  the  mass 
is  made  up  of  constituents  exactly  alike  and  concerning  which 
there  can  be  no  choice  and  hence  no  object,  other  than  mere 
separation,  to  be  subserved  by  selection.  Yet  the  cases  now 
under  consideration  are  often  treated  as  identical  with  those 
yet  to  be  considered,  thereby  greatly  increasing  the  conflict  as 
to  that  class,  which  is  certainly  sufficiently  complicated  without 
them. 

§  699.  ■ Essential  features  of  cases  of  this  kind. —  The 

essential  features  of  this  class  are  unlike  constituents  from 
which  there  is  not  only  separation  but  selection  to  be  made ;  of 
the  other  class,  similar  constituents  from  which  a  portion  is  to 
be  separated. 

§  700.  .  Thus  where  the  contract  was  for  the  sale  of 

two  hundred  cords  of  hard  wood  out  of  a  pile  containing  be- 
tween three  hundred  and  fifty  and  four  hundred  cords  of  hard 
and  soft  wood  mixed,  it  was  held  that  there  was  no  sale  com- 
pleted until  the  two  hundred  cords  of  hard  wood  had  been  se- 
lected from  the  pile.  "  It  was  a  bargain,"  said  the  court,  "  for 
a  parcel  yet  to  be  measured  out  of  a  larger  parcel  of  various 
qualities,  and  of  an  extent  not  determined."1 

§  701.  .  So  where  one  man,  having  in  the  possession  of 

another  a  large  number  of  barrels  of  flour  varying  in  value 
from  twenty-five  to  fifty  cents  a  barrel,  agreed  to  sell  six  hun- 
dred barrels  to  a  third  person,  and  gave  him  an  order  for  them 
on  the  depositary,  it  was  held  that  no  title  to  the  six  hundred 
barrels  passed  until  they  were  selected.2 

i  Hahn    v.    Fredericks    (1874),    30    part  II,  127,  30  Am.  Dec.  202.    The 

Mich.  223,  18  Am.  R.  119.  court,  it  is  true,  do  not  place  the  case 

2  Woods  v.  McGee  (1836),  7  Ohio,    upon  the  particular  ground  stated  in 

574 


CH.  IV.]  EXISTING    CHATTELS    NOT   YET   IDENTIFIED.  [§  702. 


§702. 


Again,  in  a  very  recent  case,1  where  a  contract 


was  made  for  the  sale  of  one  hundred  and  sixty-two  thousand 
merchantable  brick  out  of  a  kiln,  it  was  held  that  no  title 
passed,  notwithstanding  payment  of  the  price,  until  they  had 

the  text,  but  this  was  evidently  a    is  a  new  question  in  this  state,  and 

is  an  exceedingly  important  one;  and  ■ 
in  consideration  of  its  importance, 
and  in  consideration  of  the  fact  that 
the  authorities  are  so  conflicting,  we 
deem  it  advisable  not  to  decide  it 
until  such  decision  is  necessary  to 
the  determination  of  the  cause  at 
issue.  We  say  this  because,  conced- 
ing the  force  of  appellants'  argu- 
ment, this  cause,  we  think,  must  be 
distinguished  from  the  cases  cited 
which  sustain  the  rule  contended 
for  by  appellants,  that  it  is  not  neces- 
sary to  separate  or  distinguish  a  por- 
tion of  personal  property  from  the 
mass  which  includes  it,  to  pass  title 
to  the  portion  sold.  All  those  cases 
are  based  on  the  supposition  that  all 
the  different  portions  of  the  mass  are 
of  equal  value  and  of  uniform  qual- 
ity, so  that  there  is  nothing  left  to 
be  done  by  either  party  but  to  weigh, 
measure  or  count,  which  acts  in- 
volve no  discretion;  that  the  inten- 
tion of  the  parties  to  the  contract  is 
the  only  thing  to  be  considered,  and 
that,  when  it  can  be  definitely  deter- 
mined from  the  terms  of  the  con- 
tract that  the  intention  of  the  parties 
was  to  pass  the  title,  the  title  is  held 
to  pass.  Or,  in  other  words,  we  pre- 
sume they  mean  to  say  that,  while 
the  separation  from  the  common 
mass  is  a  circumstance  going  to  show 
the  intention  of  the  parties  to  pass 
the  title,  it  is  not  an  essential  cir- 
cumstance. Kimberly  v.  Patchin,  19 
N.  Y.  330,  75  Am.  Dec.  334,  is  the 
leading  case  supporting  this  rule, 
and   has    received  much   criticism, 


feature  of  the  case,  and  this  ground 
is  ascribed  to  it  in  the  later  case  of 
Newhall  v.  Langdon  (1883),  39  Ohio 
St.  87, 48  Am.  R.  426.  Mr.  Ralston  in 
his  monograph,  p.  32,  sa}rs  that  Woods 
v.  McGee  was  overruled  by  Newhall 
v.  Langdon,  but  this  is  clearly  an 
error,  for,  in  the  latter  case,  the 
court,  referring  to  the  former  case, 
say:  " The  distinction  between  that 
case  and  the  one  at  bar  is  so  manifest 
that,  even  conceding  the  correctness 
of  the  principles  stated  by  the  learned 
judge  independent  of  any  usage  on 
the  subject,  and  it  is  %mnecessary  to 
question  them,  they  do  not  control 
in  the  case."  And  after  stating  two 
other  grounds  of  distinction,  the 
court  says:  "  3d.  The  flour  varied  in 
price,  and  therefore  in  marketable 
quality,  and  in  all  such  cases  there  is 
to  be  a  selection  before  the  title  passes.'''' 
(The  italics  are  mine.     M.) 

i  Anderson  v.  Crisp  (1892),  5  Wash. 
178,  31  Pac.  R  638, 18  L.  R.  A.  419.  In 
this  case  it  was  said  by  Dunbar,  J. : 
"  It  is  contended  by  the  appellants 
that  the  determining  question  in  this 
case  is  whether  a  sale  of  personal 
property  constituting  a  part  of  a  large 
mass  of  like  property  passes  title  to 
the  purchaser  until  it  is  separated 
from  the  mass,  or  in  some  other  way 
designated  or  distinguished;  and  ap- 
pellants' brief  on  this  proposition  is 
elaborate  and  painstaking,  and  would 
greatly  aid  the  court  in  investigat- 
ing this  question,  did  we  deem  its  de- 
termination necessary  in  this  cause. 
The  question  presented  by  appellants 


575 


§  702.] 


LAW   OF    SALE. 


[book  IT. 


been  selected,  inasmuch  as  it  was  shown  that  the  brick  in 
the  kiln  were  not  all  merchantable,  and  that  selection  had 
to  be  exercised  in  order  to  determine  those  which  were  of  the 
kind  designated.     The  same  conclusion  as  to  the   necessity 


both  favorable  and  adverse,  by  courts 
and  text  writers.  There  it  was  held, 
upon  a  sale  of  a  specific  quantity  of 
grain,  that  its  separation  from  a  mass 
indistinguishable  in  quality  or  value, 
in  which  it  is  included,  is  not  neces- 
sary to  pass  the  title,  when  the  in- 
tention to  do  so  is  otherwise  clearly 
manifested.  In  that  case  it  will  be 
noticed  that  the  goods  were  indis- 
tinguishable in  quality  or  value,  and 
it  was  upon  that  particular  state  of 
facts  that  the  argument  of  the  court 
was  based.  'It  is,'  said  the  court, 
'a  rule  asserted  in  many  legal  au- 
thorities, but  which  may  be  quite  as 
fitly  called  a  rule  of  reason  and  logic 
as  of  law,  that  in  order  to  an  exe- 
cuted sale,  so  as  to  transfer  a  title 
from  one  party  to  the  other,  the 
thing  sold  must  be  ascertained.  This 
is  a  self-evident  truth,  when  applied 
to  those  subjects  of  property  which 
are  distinguishable  by  their  physical 
attributes  from  all  other  things,  and 
therefore  are  capable  of  exact  identi- 
fication.' But  the  court  with  great 
force  proceeds  to  argue  that  other 
character  of  property,  such  as  grains, 
wines,  oils,  etc.,  which  are  not  sus- 
ceptible of  definite  description,  are 
not  subject  to  this  rule,  but  that  the 
title  to  such  property  can  be  held  to 
pass  by  contract  without  separation 
or  manual  delivery,  if  nothing  fur- 
ther remains  to  be  done  in  regard  to 
it.  But  it  must  be  admitted  that  if 
all  the  property  in  the  mass  is  not  of 
equal  value  something  more  does  re- 
main to  be  done.  Thus,  in  the  case 
at  bar,  another  element  is  injected 


into  the  contract,  and  there  is  a 
question  of  relative  values  to  be  yet 
determined.  The  appellants  did  not 
buy  a  portion  of  an  indistinguish- 
able mass,  where  all  the  component 
parts  were  of  equal  value;  but  their 
contract  called  for  one  hundred  and 
sixty-two  thousand  merchantable 
brick;  and  the  evidence  was  that  the 
brick  that  were  deemed  unmerchant- 
able were  thrown  aside  and  not 
counted  in  when  they  came  to  haul 
them.  So  that  it  is  impossible  to  de- 
termine, before  the  segregation  of 
the  brick,  not  only  what  particular 
brick  were  sold,  but  what  relative 
portions  of  the  kiln  were  sold.  And 
while,  as  we  have  said  before,  it  may 
be  conceded  that  the  intention  of 
the  parties  will  be  carried  into  effect 
if  it  can  be  ascertained,  yet  under 
this  contract  it  is  impossible  to  ascer- 
tain not  only  the  particular  brick 
sold,  but  the  actual  relative  number 
of  brick  sold,  by  reason  of  the  un- 
settled question  of  what  brick  were 
and  what  were  not  merchantable, 
creating  an  element  of  uncertainty 
in  the  contract  which  does  not  exist 
in  those  cases  where  the  vendor  sells 
a  certain  number  of  bushels  of  grain 
or  a  certain  number  of  gallons  of  oil 
or  tons  of  hay,  in  an  undivided  mass, 
where  all  the  different  portions  are 
of  equal  value.  We  think  to  hold 
that  the  title  passed  in  this  case 
would  be  carrying  the  principles  of 
liberal  construction  beyond  the  rule 
laid  down  in  any  of  the  cases  cited 
by  appellants.  It  is  true  that  some 
of  them  were  brick  cases,  similar  in 
76 


CH.  IV.]  EXISTING    CHATTELS    NOT   YET   IDENTIFIED.  [§   702. 


of  selection  was  reached  in  an  important  case  where  there 
was  an  agreement  to  sell  a  large  number  of  hams  which  were 
a  part  of  a  still  larger  mass  of  different  weights  and  value,  and 
there  was  no  separation,  setting  apart  or  marking  so  as  to  dis- 
tinguish those  in  question  from  the  residue.  The  court,  how- 
ever, put  its  decision  upon  the  broad  ground  that  separation  is 
required  to  pass  the  title,  even  when  the  constituents  of  the 
mass  are  identical.1  Many  other  cases  of  the  same  kind  might 
be  given,  but  those  already  stated  will  sufficiently  illustrate 
the  principle,  and  further  examples  will  be  given  in  the  notes.2 


most  respects  to  the  case  at  bar,  but 
in  none  of  them  did  it  appear  that 
the  brick  in  the  kiln  were  not  of 
uniform  and  equal  value;  and  all  the 
American  cases  were  decided  on  the 
strength  of  Kimberly  v.  Patchin, 
supra,  and  the  principles  upon  which 
that  case  was  based  are  thus  stated 
by  Mr.  Ralston,  who  is  an  earnest 
advocate  of  what  he  terms  '  the  new 
rule:'  'When  the  constituent  parts 
which  make  up  a  mass  are  indis- 
tinguishable from  each  other  by  any 
physical  difference  in  size,shape, text- 
ure or  quality,  and  the  quantity  and 
general  mass  from  which  it  is  to  be 
taken  are  specified,  the  subject  of 
the  contract  is  sufficiently  ascer- 
tained, and  the  title  will  pass,  if  the 
sale  is  complete  in  all  its  other  cir- 
cumstances.' Plainly,  the  case  at  bar 
does  not  fall*within  those  principles. 
"This  being  our  view  of  the  law 
covering  this  particular  case,  and 
there  being  no  conflict  in  the  testi- 
mony concerning  the  fact  that  it  was 
only  merchantable  brick  that  were 
sold,  the  appellants  could  not  have 
been  injured  by  the  instruction  com- 
plained of;  for  they  would  not  have 
been  entitled  to  a  verdict  in  any 
event.  Reaching  this  conclusion  ren- 
ders unnecessary  the  investigation  of 
the  other  questions  raised."    Appel- 


lants cited  Kimberly  v.  Patchin,  19 
N.  Y.  330,  75  Am.  Dec.  334;  Jackson 
v.  Anderson,  4  Taunt.  24;  Pleasants 
v.  Pendleton,  6  Rand.  (Va.)  473,  18 
Am.  Dec.  72(3;  Waldron  v.  Chase,  37 
Me.  414,  59  Am.  Dec.  56:  Lamprey 
v.  Sargent,  58  N.  H.  241;  Chapman 
v.  Shepard,  39  Conn.  413;  Damon  v. 
Osborn,  1  Pick.  476,  11  Am.  Dec. 
229;  Gardner  v.  Dutch,  9  Mass. 
427;  Weld  v.  Cutler,  2  Gray,  195; 
Hutchison  v.  Com.,  82  Pa.  St.  472; 
Morgan  v.  King,  28  W.  Va.  1,  57 
Am.  R.  633;  Newhall  v.  Langdon,  39 
Ohio  St.  87,  48  Am.  R.  426;  Carpen- 
ter v.  Graham,  42  Mich.  191,  3  N.  W. 
R.  974;  Wagar  v.  Railroad  Co.,  79 
Mich.  648,  44  N.  W.  R.  1113;  Young 
v.  Miles,  20  Wis.  646;  Hurff  v.  Hires, 
40  N.  J.  L.  581,  29  Am.  R.  282;  How- 
ell v.  Pugh,  27  Kan.  702;  Davis  v. 
Budd,  60  Iowa,  144,  14  N.  W.  R.  211; 
Galloway  v.  Week,  54  Wis.  604; 
Watts  v.  Hendry,  13  Fla.  523;  Horr 
v.  Barker,  11  Cal.  393,  70  Am.  Dec. 
791;  Long  v.  Spruill,  58  N.  C.  96; 
Morrison  v.  Woodley,  84  111.  192; 
Ralston  on  Sales  of  Undivided  Inter- 
ests in  Pers.  Prop.,  pp.  21-58. 

1  Ferguson  v.  Northern  Bank  of 
Kentucky,  14  Bush  (Ky.),  555,  29  Am. 
R.  418. 

2  In  Austen  v.  Craven  (1812),  4 
Taunt.  644,  the  contract  was  for  the 


37 


577 


703.] 


LAW    OF    SALE. 


[book  IT. 


§  703,  How  when  whole  mass  delivered  to  vendee.— 

Before  leaving  this  branch  of  the  subject,  notice  should  be  made 
of  a  class  of  cases  (analogous  to  others  already  considered  in 


sale  of  fifty  hogsheads  of  sugar  of 
different  weights  to  be  taken  from 
the  stock,  no  particular  hogsheads 
being  specified  and  the  weight  not 
being  capable  of  ascertainment  until 
they  were  selected  and  weighed. 
Held,  that  the  title  did  not  pass.  In 
White  v.  Wilks  (1813),  5  Taunt.  176, 
there  was  a  bargain  for  twenty  tons 
of  oil,  to  be  taken  from  various  tanks 
and  cisterns  of  the  vendor  not  speci- 
fied. Held,  no  title  passed.  In  Busk 
v.  Davis  (1814),  2  M.  &  S.  397,  the  bar- 
gain was  for  ten  tons  of  hemp  out  of 
a  stock,  lying  in  mats  of  unequal 
quantities,  of  about  eighteen  tons. 
In  order  to  get  the  ten  tons  it  was 
necessary  to  weigh  the  mats  and  pos- 
sibly to  divide  a  mat.  Held,  that  the 
title  did  not  pass. 

In  Hutchinson  v.  Hunter  (1847),  7 
Barr  (Pa.  St.),  140,  there  was  a  bar- 
gain for  one  hundred  barrels  of  mo- 
lasses "of  unequal  contents  and  un- 
equal value,  part  of  a  specified  larger 
stock."  These  were  not  separated, 
marked  or  otherwise  agreed  upon. 
Held,  no  title  passed.  So,  in  Foster 
v.  Mining  Co.  (1888),-  68  Mich.  188,  36 
N.  W.  R.  171,  where  iron  ore  in  a  pile 
with  worthless  material  was  bar- 
gained for  to  be  selected  from  the 
residue;  and  in  Cass  v.  Gunison  (1888), 
68  Mich.  147,  36  N.  W.  R.  45,  where 
$3,000  worth  of  lumber  was  con- 
tracted for  out  of  any  one  of  three 
grades,  no  title  passed  till  selected. 

Foot  v.  Marsh  (1873),  51  N.  Y.  288, 
was  also  a  case  of  this  kind,  and  the 
court  distinguished  it  from  the  class 
of  cases  considered  in  §  704. 

In  Dunkart  v.  Rineheart  (1883),  89 
N.  C.  354,  where  a  vendor  agreed  to 

57 


sell  to  the  vendee  "  any  of  my  black 
walnut  trees,  not  exceeding  fifteen 
in  number,  that  will  girth  eight  feet 
six  inches  in  circumference  and 
under  ten  feet,  at  $2  each;  and  all 
trees  measuring  ten  feet  in  circum- 
ference and  upwards,  at  $2.50  each," 
it  was  held  that  if  there  were  more 
than  fifteen  such  trees  on  the  land 
the  contract  was  ineffectual  to  pass 
title  to  any. 

In  Warren  v.  Buckminster  (1852), 
24  N.  H.  336,  and  Robbins  v.  Chipman 
(18T6),  1  Utah,  335,  it  was  held  that 
where  a  designated  number  of  sheep 
were  sold  from  a  flock,  but  not  se- 
lected, no  title  passed.  Latter  case 
affirmed  on  rehearing,  2  Utah,  347. 
So  in  Williams  v.  Feiniman  (1875),  14 
Kan.  288,  where  certain  liquors  were 
sold  to  be  supplied  out  of  the  stock 
of  the  vendor. 

In  Block  Bros.  v.  Maas  (1880),  65 
Ala.211,a  billof  sale  purported  to  con- 
vey the  whole  of  a  stock  of  merchan- 
dise, "  reserving  and  excepting  the 
amount  of  $1,000  worth  of  said  mer- 
chandise, personal  property,  which  is 
hereby  selected  by  me,  as  a  resident 
of  said  State,  as  exempt  to  me  under 
the  laws  of  Alabama,  and  which  per- 
sonal property,  to  the  amount  of 
$1,000,  is  not  hereby  conveyed."  Held, 
to  be  only  an  executory  agreement 
until  the  vendor  has  selected  the  por- 
tion reserved  as  exempt. 

Pierson  v.  Spaulding  (1888),  67 
Mich.  640,  35  N.  W.  R.  699,  was  a  case 
very  similar  to  the  last,  where  there 
was  a  sale  of  a  stock  of  goods  except- 
ing and  reserving  from  the  stock 
whatever  it  might  inventory  above 
$4,500,  and  it  was  held  that  the  title 


€H.  IV.]  EXISTING    CHATTELS    NOT    VET    IDENTIFIED.  [§  704. 


another  place  !)  which  hold  that  even  where  selection,  as  dis- 
tinguished from  mere  separation,  is  required  before  the  title 
can  pass,  the  identity  of  the  goods  may  be  sufficiently  deter- 
mined to  allow  the  passing  of  the  title  by  a  delivery  of  the 
whole  mass  to  the  purchaser  with  authority  to  make  the  selec- 
tion for  himself.  Thus,  in  a  recent  case,2  all  the  hard  brick  in 
a  certain  kiln  had  been  bargained  for,  to  be  selected  by  the 
purchaser  from  the  kiln,  which  contained  two  kinds;  but  as  the 
whole  mass  was  turned  over  to  the  purchaser  to  enable  him  to 
make  his  selection,  it  was  held  that  the  title  passed.3  "  In  the  case 
of  a  sale  of  a  part  of  an  entire  mass  of  goods,"  said  the  court, 
"  if  the  purchaser  is  allowed  to  take  possession  of  the  whole, 
for  the  purpose  of  selecting  his  part,  the  title  to  that  part  passes 
before  selection." 

§  704.  Contracts  respecting  a  part  of  a  mass  of  like  con- 
stituents.—  The  question  of  the  necessity  of  the  separation 


could  not  pass  until  the  vendor  had 
taken  out  the  goods  excepted  and  re- 
served. 

In  Steaubli  v.  Bank  (1893),  11  Wash. 
426,  39  Pac.  R.  814,  where  a  contract 
of  sale  was  drawn  for  a  certain  num- 
ber of  shingles  stored  with  others  in 
a  mill  dry  room,  the  court  said  that 
the  lack  of  proof  of  any  uniform 
character  or  value  of  all  the  shingles 
stored  together  went  to  show  that 
no  title  had  passed. 

1  See  ante,  §  523. 

2  Lamprey  v.  Sargent  (1878),  58  N. 
TL  241. 

a  Weld  v.  Cutter  (1854),  2  Gray 
(Mass.),  195,  and  Damon  v.  Osborn 
(1823),  1  Pick.  (Mass.)  476, 11  Am.  Dec. 
229,  were  cited  by  the  court.  In 
Weld  v.  Cutter  there  was  a  mortgage 
of  a  part  of  a  large  quantity  of  coal, 
but  the  mortgagee,  with  the  assent 
of  the  mortgagor,  took  possession  of 
the  whole  pile  "  for  the  purpose  of 
separating  and  securing  his  part," 
and  it  was  held  that  the  title  passed. 


Crofoot  v.  Bennett,  2  N.  Y.  258, 
was  like  this  case.  There  a  portion 
of  the  bricks  in  a  specified  kiln  were 
sold  at  a  certain  price  per  thousand, 
and  the  possession  of  the  whole  kiln 
was  delivered  to  the  vendee  that  he 
might  take  the  quantity  bought. 
Held,  that  the  title  had  passed  to  the 
number  sold. 

In  Iron  Cliffs  Co.  v.  Buhl  (1879),  42 
Mich.  86,  two  thousand  tons  of  a  cer- 
tain grade  of  iron  ore  were  pur- 
chased, to  be  delivered  at  the  rail- 
road docks  at  Erie  and  carried  to  the 
purchasers  by  the  railroad  company. 
More  than  the  quantity  sold  was  de- 
livered at  the  docks,  all  of  the  same 
grade,  and  nothing  remained  but  to 
take  the  two  thousand  tons  from  the 
common  mass  and  forward  them  to 
the  purchasers,  it  being  understood 
by  the  parties  that  the  railroad  com- 
pany would  see  to  that  business. 
Held,  that  the  property  passed  to  the 
purchasers  when  the  ore  was  deliv- 
ered at  the  docks. 


579 


§§  705,  706.]  LAW    OF    SALE.  [BOOK    II. 

and  identification  of  a  part  bargained  for  out  of  a  larger  mass 
made  up  of  ingredients  of  the  same  kind,  value  and  amount 
presents  serious  difficulties  and  has  involved  the  courts  in  what 
has  been  thought  to  be  a  hopeless  conflict  of  authority.  It  is 
believed,  however,  that  much  aid  can  be  derived  here  also  from 
discrimination. 

§705.  Intention   material. —  It   must  be   constantly 

kept  in  mind  that  courts  are  more  and  more  inclined,  and  prop- 
erly, to  give  effect  to  the  intention  of  the  parties;  and  this  in- 
tention, if  it  can  be  ascertained  and  is  not  inconsistent  with 
the  general  policy  of  the  law,  will  be  held  conclusive  even 
though  a  different  result  might  be  required  under  the  older 
rules  laid  down  by  the  courts  for  the  very  purpose  of  aiding 
in  the  discovery  of  intention.  "  The  tendency  of  the  modern 
decisions,"  it  is  said  in  a  leading  case,1  "is  to  give  effect  to 
contracts  of  sale  according  to  the  intention  of  the  parties  to  a 
greater  extent  than  is  found  in  the  older  cases,  and  to  engraft 
upon  the  rule  that  the  property  passes  by  the  contract  of  sale, 
if  such  be  the  intention,  fewer  exceptions,  and  those  only  which 
are  founded  on  substantial  considerations  affecting  the  inter- 
ests of  the  parties." 

§  706.  Usage  may  affect. —  It  must  also  be  noticed  that 

the  demands  of  modern  business  have  given  rise  to  usages  for 
the  speedy  and  convenient  transaction  of  business  which  were 
unknown  in  earlier  times  and  which  sanction  methods  of  deal- 
ing with  which  earlier  generations  were  not  familiar.  Parties 
who  deal  in  a  field  or  about  matters  in  reference  to  which 
such  an  usage  is  known  to  prevail,  presumptively  make  it  a 
part  of  their  contract.  "  In  all  questions  involving  contract 
relations,"  says  Chief  Justice  Johnson,  of  Ohio,  "  the  conven- 
ience and  wants  of  business  give  rise  to  usages  which  become 
part  of  the  contract,  where  it  is  made  with  reference  to  such 
usages.  This  is  often  called  the  expansive  property  of  the 
common  law,  but  it  is  rather  the  application  of  accepted  prin- 

1  Hurff  v.  Hires  (1878),  40  N.  J.  L.  581,  29  Am.  R.  282. 
580 


CH.  IV.]       EXISTING    CHATTELS    NOT    YET    IDENTIFIED.       [§§707,708. 

ciples  of  right  and  justice,  as  evidenced  by  common  law,  to 
new  phases  and  methods  in  the  transaction  of  business."1  Now, 
applying  these  rules  to  the  question  in  hand,  it  may  first  be 
noticed  that  — 

§  707.  How  question  affected  by  usage. —  In  reference 

to  many  commodities  presenting  always  substantially  like  char- 
acteristics of  form,  nature  and  value,  such  as  wheat,  corn,  oil, 
flour,  and  the  like,  it  has  become  common  to  mingle  together 
different  bulks  in  one  general  mass  and  to  draw  from  the  bulk, 
when  needed,  similar  quantities,  without  regard  to  whether  the 
identical  particles  contributed  were  returned  or  not.  It  has 
also  become  common  to  deal  with  orders,  warrants  or  receipts 
for  articles  so  mingled  as  though  they  were  the  articles  them- 
selves. 

§  708.  .  Thus,  in  a  leading  case2  it  appeared  that  A  had 

one  hundred  barrels  of  flour  in  the  custody  of  a  warehouseman. 
He  sold  fifty  barrels  to  B,  and  twenty -five  barrels  each  to  C 
and  D,  giving  each  one  an  order  for  his  flour  upon  the  ware- 
houseman. These  orders  were  presented  to  the  warehouseman 
and  accepted  by  him.  It  was  held  that  the  title  passed  with- 
out separation.  Said  the  court:  "  In  view  of  the  nature  of  this 
particular  business,  in  the  case  at  bar,  and  the  known  usage 

i  Newhall    v.   Langdon    (1883),  39  ing  v.  Breed,  14  Allen  (Mass.),  376,  92 

Ohio  St.  87,  48  Am.  R.  426.  Am.  Dec.  777;  Kimberly  v.  Patchin, 

2  Newhall  v.  Langdon  (1883),  39  Ohio  19  N.  Y.  330,  75  Am.  Dec.  334;  Wal- 

St.  87,  48  Am  R.  426.    The  court  fur-  dron  v.  Chase,  37  Me.  414, 59  Am.  Dec. 

ther  said:  "We  hold  that  upon  the  56;  Chapman  v.  Shepard,  39  Conn, 

facts  found  by  the  court,  showing  413;  Whitehouse  v.   Frost,  12  East, 

the  well  known  usage  of  the  busi-  614.     Also  notes  to  Hurff  v.  Hires,  11 

ness,  it  is  manifest   that  upon  the  Vroom  (40  N.  J.  L.),  581,  29  Am.  R. 

presentation  and  acceptance  of  this  282;  17  and  18  Am.  Law  Reg.  18, 161, 

order  the  sale  was  completed,  and  in  which  the  whole  subject  is   ex- 

the  subsequent  loss  of  the  flour  while  haustively  discussed  and  the  cases 

stored  at  the  depot  must  fall  on  the  reviewed."    To  the  same  effect:  In- 

purchaser.     Steel  Works  v.  Dewey,  glebright  v.  Hammond  (1850),  19  Ohio, 

37  Ohio  St.  242;  Young  v.  Miles,  23  337,  53  Am.  Dec.  430;  McPherson  v. 

Wis.  643;  Cloud  v.  Moorman,  18  Ind.  Gale  (1866),  40  111.  368;    Warren  v. 

40;  Horr  v.  Barker,  8  Cal.  603;  Cush-  Milliken  (1869),  57  Me.  97. 

581 


§§  709,  710.]  LAW   OF    SALE.  [BOOK    II. 

governing  buyer  and  seller,  we  think  it  clear  that  as  between 
them  by  the  delivery  of  the  order  from  the  seller,  by  the  pur- 
chaser to  the  warehouseman,  and  his  acceptance  of  the  same, 
the  right  to  the  fifty  barrels  of  flour  was  perfected  in  the  pur- 
chaser, and  that  thereafter  it  became  his  property.  It  is  true 
there  were  one  hundred  barrels  out  of  which  the  order  was  to 
be  rilled,  but  it  was  all  of  the  same  quality,  and  by  the  known 
usage  the  only  delivery  to  be  made  by  the  seller  was  by  an 
order  on  the  warehouseman,  which  when  presented  entitled 
the  purchaser  to  separate  and  remove  the  property.  No  selec- 
tion, properly  speaking,  had  to  be  made,  as  all  the  barrels  were 
alike,  but  only  a  counting  off  and  separation ;  and  in  this  re- 
spect it  differs  from  those  cases  where  it  is  the  intention  of 
the  parties  that  there  is  to  be  a  selection  or  designation  out  of 
the  larger  quantity. " 

§  709.  .  So  it  has  been  held  that  a  valid  pledge  may  be 

made  of  a  portion  of  a  mass  of  wheat  in  a  storehouse  by  the 
delivery  of  the  receipt,  without  separating  the  wheat  pledged 
from  the  residue.  "  For  the  convenient  transaction  of  the  com- 
merce of  the  country,"  said  Cooley,  J.,  "  it  has  been  found  nec- 
essary to  recognize  and  sanction  this  mode  of  transfer,  and 
vast  quantities  of  grain  are  daily  sold  by  means  of  such  re- 
ceipts." l 

§  710.  How  when  no  usage  governs  — Cases  holding  sep- 
aration unnecessary. —  But  there  still  remains  a  large  class  of 
cases  in  which  no  usage  prevails  or  which  have  been  deter- 
mined without  reference  to  usage.  These  are  cases  in  which 
a  person,  who  continues  in  possession,  undertakes  to  sell  a 
given  portion  of  a  larger  mass  of  goods  of  the  same  kind  and 
quality,  and  the  question  is  whether  the  title  to  such  portion 
can  pass  before  the  goods  in  question  have  been  separated  from 

1  Merchants',  etc.  Bank  v.  Hibbard    77  111.  305;  Gregory  v.  Wendell,  40 
(1882),  48  Mich.  118,  11  N.  W.  R.  834,    Mich.  432.    See  also  Carpenter  v.  Gra- 
42  Am.  R.  465,  citing  Gibson  v.  Ste-    ham,  42  Mich.  191;  Watts  v.  Hendry, 
vens,  8  How.  (U.  S.)  384;  Gushing  v.     13  Fla.  523. 
Breed,  supra;  Broadwell  v.  Howard, 

582 


CH.  IV.]  EXISTING    CHATTELS   NOT   YET    IDENTIFIED. 


[§  ttl. 


the  larger  mass.    Upon  this  question  the  authorities  seem  hope- 
lessry  in  conflict. 


§711. 


Kimberly  y.  Patcliin  as  a  type. —  One  line  of 


cases,  of  which  Kimberly  v.  Patchin1  is  a  leading  and  impor- 
tant one  and  typical  of  the  whole  class,  holds  that  the  title  may 


1  Kimberly  v.  Patchin  (1859),  19 
N.  Y.  330,  75  Am.  Dec.  334  The  court 
refer  with  approval  to  Whitehouse 
v.  Frost  (1810),  12  East,  614;  Jackson 
v.  Anderson  (1811),  4  Taunt.  24,  and 
Pleasants  v.  Pendleton  (1828),  6  Rand. 
(Va.)  473,  18  Am.  Dec.  726.  White  v. 
Wilks,  5  Taunt.  176,  and  Austen  v. 
Craven,  4  Taunt.  644,  were  distin- 
guished. In  Whitehouse  v.  Frost, 
D.  &  B.,  who  had  forty  tons  of  oil  in 
a  cistern,  sold  ten  tons  to  F.,  who  sold 
it  to  T,  giving  him  an  order  for  it  on 
D.  &  B.,  who  accepted  the  order  by 
indorsement  upon  it.  Held,  that  the 
property  had  passed,  as  between  F. 
and  T.  This,  says  Mr.  Benjamin,  is  a 
case  "which,  notwithstanding  expla- 
nations by  the  judges  in  subsequent 
cases,  is  scarcely  even  mentioned 
without  suggestion  of  doubt  or  dis- 
approval" In  Jackson  v.  Anderson, 
F.  had  remitted  to  L.  &  Co.  four  thou- 
sand and  seven  hundred  Spanish 
dollars  and  advised  plaintiffs  that 
one  thousand  nine  hundred  and  sixty 
of  these  were  designed  for  them.  L. 
&  Co.  pledged  the  whole  number 
to  defendant,  who  sold  them  to  the 
Bank  of  England.  Held,  that,  though 
plaintiffs'  dollars  had  not  been  sepa- 
rated from  the  others,  yet  as  the  de- 
fendant had  converted  the  whole 
number,  trover  would  lie  for  the 
plaintiffs'  share.  In  White  v.  Wilks 
there  was  a  sale  of  twenty  tons  of  oil 
out  of  the  seller's  stock,  which  was 
in  different  warehouses  and  cisterns. 
There  was  no  specification  of  the  bulk 


from  which  the  twenty  tons  were  to 
be  taken.  Held,  that  no  title  passed. 
In  Austen  v.  Craven  the  sale  was  of 
a  quantity  of  sugar  of  different  kinds 
at  a  given  price  per  hundred-weight. 
It  did  not  appear  that  the  seller  at 
the  time  of  the  contract  had  the  sugar 
on  hand,  or  any  part  of  it,  and  the 
fact  was  assumed  to  be  otherwise. 
Held,  that  no  title  passed. 

Prior  in  date  to  Kimberly  v.  Patchin 
is  Pleasants  v.  Pendleton,  supra, 
which  is  often  cited  as  the  leading 
case  upon  this  side  of  the  question. 
In  that  case  there  was  a  contract  for 
the  sale  of  one  hundred  and  nineteen 
barrels  of  flour  out  of  a  lot  of  one 
hundred  and  twenty-three  of  like 
kind  stored  in  the  warehouse  of  a 
third  person.  An  order  on  the  ware- 
houseman for  the  flour  was  delivered 
to  the  purchaser  and  he  gave  the 
seller  a  check  for  the  price.  The  flour 
would  have  been  delivered  to  the 
purchaser  if  called  for  on  the  day  of 
purchase  (though  the  contract  was 
not  completed  till  late  in  the  after- 
noon), but  it  was  burned  by  acci- 
dental fire  the  following  morning. 
It  was  held  that  the  title  had  passed, 
though  the  court  laid  much  stress 
upon  the  fact  that  there  was  a  well- 
defined  usage  to  make  a  constructive 
delivery  by  the  transfer  of  warehouse 
receipts  or  orders. 

Where  the  owner  of  a  quantity  of 
corn  in  bulk  sells  a  certain  number 
of  bushels  therefrom  and  receives  his 
pay,  and  a  vendee  takes  away  a  part, 


583 


711.] 


LAW   OF    SALE. 


[BOOK    II. 


pass  under  such  circumstances  if  that  appears  to  have  been 
the  intention  of  the  parties.  In  the  case  referred  to,  it  ap- 
peared that  one  D.  had  a  quantity  of  wheat  in  his  warehouse 
which  he  and  one  S.  estimated  at  six  thousand  bushels.     D. 


the  property  in  the  part  sold  vests  in 
the  vendee,  although  it  has  not  all 
been  measured  or  separated  from  the 
heap.  Waldron  v.  Chase,  37  Me.  414. 
(Compare  with  Morrison  v.  Dingley 
(1874),  63  Me.  553,  cited  in  following 
note.) 

In  Young  v.  Miles  (1866),  20  Wis. 
646,  the  plaintiff  was  owner  of  a  cer- 
tain quantity  of  wheat  which  was 
stored  in  mass  with  that  of  others  in 
a  warehouse.  Shipments  were  made 
from  the  mass  until  it  was  reduced 
to  an  amount  no  greater  than  that 
which  plaintiff  had  deposited  with 
the  warehouseman,  and  replevin  for 
this  was  sustained.  The  court  based 
their  decision  on  the  general  prin- 
ciple as  laid  down  in  Kimberly  v. 
Patchin.  Downer,  J.,  preferred  to 
allow  the  action  on  the  theory  of  seg- 
regation, as  laid  down  in  Horr  v. 
Barker,  6  Cal.  489,  but  the  chief  jus- 
tice, speaking  for  the  court,  said  he 
could  see  no  difference  between  the 
doctrine  of  segregation  and  the  right 
of  separation,  except  that  the  latter 
was  the  more  fundamental. 

In  Clark  v.  Griffith  (1862),  24  N.  Y. 
595,  plaintiff's  assignors  had  pur- 
chased from  the  defendants  four  bill- 
iard tables  of  equal  value,  giving 
in  payment  therefor  certain  notes 
and  a  chattel  mortgage  upon  the 
tables.  The  agreement  was  that  as 
fast  as  the  amounts  paid  on  the  notes 
should  cover  the  prices  of  the  tables, 
receipts  in  full  for  them  were  to  be 
given  by  the  vendors,  and  such  a  re- 
ceipt in  full  for  one  table  had  been 
given  prior  to  this  action.     Default 


having  been  made  in  the  payment  of 
subsequent  notes,  the  defendants 
foi'eclosed  the  mortgage,  and  took 
all  the  tables  under  it,  alleging  that 
since  no  particular  table  had  been 
appropriated  by  the  purchasers,  no 
title  had  passed  to  them.  But  the 
court  held,  following  Kimberly  v. 
Patchin,  that  just  as  the  plaintiff's 
assignors,  while  they  had  the  tables 
in  their  possession,  had  the  right  at 
any  time  to  take  distinct  possession 
of  one  of  them,  so  the  vendors,  when 
they  came  to  foreclose  their  mort- 
gage, had  the  same  right  to  select  out 
three  tables  unless  the  purchasers 
had  already  selected;  and  since  the 
defendants,  in  seizing  under  fore- 
closure, must  have  taken  the  tables 
one  at  a  time,  the  first  three  tables 
taken  must  be  held  to  have  been  se- 
lected by  them,  and  the  title  to  the 
last  was  in  the  purchaser. 

And  in  Minnesota  the  court  said 
that  "while  there  is  some  confusion 
and  conflict  among  the  authorities 
on  the  subject,  yet  it  is  settled  in 
this  State  that  where  a  certain  num- 
ber of  articles  are  sold  out  of  a  greater 
number  of  exactly  the  same  kind 
and  quality,  with  the  intention  that 
the  title  should  presently  pass,  and 
where  the  vendee  has  the  absolute 
right  at  any  time  to  take  the  amount 
or  number  out  of  the  whole  mass  or 
quantity,  this  is  sufficient  to  pass  the 
title,  although  the  specific  articles 
are  not  actually  designated  or  sepa- 
rated from  the  remainder.  Under 
such  circumstances,  until  the  sepa- 
ration is  made,  the  vendor  and  vendee 


584 


CH.  IV.]  EXISTING   CHATTELS   NOT   YET   IDENTIFIED.  [§  712. 

gave  to  S.  a  written  instrument  by  which  he  made  a  present 
transfer  to  S.  of  six  thousand  bushels  of  wheat.  D.  also  gave 
to  S.  a  warehouse  receipt  for  the  wheat,  declaring  that  he  had 
received  in  store  six  thousand  bushels  of  wheat  subject  to  the 
order  of  S.  D.  afterward  sold  the  same  wheat  to  other  par- 
ties, and,  upon  measurement,  it  was  found  that  the  whole 
quantity  in  the  warehouse  at  the  time  of  the  dealings  with  S. 
was  six  thousand  two  hundred  and  forty-nine  bushels.  The 
defendants  claimed  title  through  S.  and  had  obtained  posses- 
sion of  the  wheat  by  replevin.  The  plaintiffs  claimed  title 
through  the  second  purchaser.  It  was  held  that  the  title 
passed  to  S. 

§  712.  .  After  discriminating  between  chattels  of  unlike 

kinds,  "distinguishable  by  their  physical  attributes  from  all 
other  things,"  and  masses  of  property  made  up  of  particles  of 
like  kind  and  nature,  such  as  oil,  wheat,  flour,  and  the  like, 
the  court,  per  Comstock,  J.,  say,  referring  to  the  latter  kind : 
"  "Where  the  quantity  and  the  general  mass  from  which  it  is  to 
be  taken  are  specified,  the  subject  of  the  contract  is  thus  ascer- 
tained, and  it  becomes  a  possible  result  for  the  title  to  pass  if 
the  sale  is  complete  in  all  its  other  circumstances.  An  actual 
delivery,  indeed,  cannot  be  made  unless  the  whole  is  transferred 
to  the  possession  of  the  purchaser,  or  unless  the  particular 
quantity  sold  is  separated  from  the  residue.     But  actual  deliv- 

are  tenants  in  common  of  the  whole  633;  Hires  v.  Hurff  (1876),  39  N.  J.  L. 

according  to  their  respective  inter-  4;  Smith  v.  Friend  (1860),  15  Cal.  124; 

ests."      MacKellar    v.   Pillsbnry,   48  Aderholt  v.    Embry   (1884),  78  Ala. 

Minn.  396,  51  N.  W.  R.  222;  Nash  v.  185;  Crapo  v.Seybold  (1876),  35  Mich. 

Brewster,  39  Minn.  530,  41  N.  W.  R.  169  (considered  again  in  36  Mich.  444): 

105  [wherein  Kimberly  v.  Patchin  Kaufmann  v.  Schilling  (1874).  58  Ma 

supra;  Russell  v.  Carrington,  42  N.  Y.  218;  Hoyt  v.  Insurance  Co.,  26  Hun, 

118;  Lobdell  v.  Stowell,  51  N.  Y.  70;  416;    Andrews   v.   Smith    (1884),   34 

Chapman  v.  Shepard,  39  Conn.  413;  Hun,  20;  Rodee  v.  Wade  (1866),  47 

Hurff  v.  Hires,  40  N.  J.  L.  581,  are  Barb.  53. 

cited  and  relied  uponj.  In  Cloke  v.  Shafroth  (1891),  137  111. 

To  like  effect:  Watts  v.  Hendry,  13  393,  27  N.  E.  R.  702,  31  Am.  St.  R.  375, 

Fla.  523;  Piazzek  v.  White,  23  Kan.  this  rule  is  said  to  be  supported  by 

621;   Bailey  v.  Long  (1880),  24  Kan.  the  weight  of  American  decisions. 
90;  Phillips  v.  Ocmulgee  Mills,  55  Ga. 

585 


§§  713,  714.]  LAW  OF  SALE.  [BOOK  II. 

ery  is  not  indispensable  in  any  case  in  order  to  pass  a  title  if 
the  thing  to  be  delivered  is  ascertained,  if  the  price  is  paid  or 
a  credit  given,  and  nothing  further  remains  to  be  done  in  re- 
gard to  it.  ...  It  is  unnecessary  to  refer  to  all  the  cases, 
or  to  determine  between  such  as  may  appear  to  be  in  conflict 
with  each  other.  None  of  them  go  to  the  extent  of  holding 
that  a  man  cannot,  if  he  wishes  and  intends  so  to  do,  make  a 
perfect  sale  of  part  of  a  quantity  without  actual  separation, 
where  the  mass  is  ascertained  by  the  contract,  and  all. parts  are 
of  the  same  value  and  undistinguishable  from  each  other." 

§  713.  Cases  holding  separation  necessary.— There  is, 

on  the  other  hand,  a  line  of  cases  holding  that  under  such  cir- 
cumstances the  intention  is  not  sufficient  and  that  no  title  will 
pass  until  the  particular  goods  agreed  upon  have  been  separated 
from  the  mass  of  which  they  form  a  part.  To  use  the  language 
of  Chief  Justice  Gibson  in  such  a  case:  "Without  separation, 
intention  is  nothing."     Of  these  — 

§  714.  Scudder  v.  Worster  as  a  type. —  Scudder  v. 

Worster1  may  be  selected  as  a  type.    There  the  defendants  had 
entered  into  a  contract  with  S.  T.  &  Co.  to  sell  to  the  latter 

i  Scudder  v.  Worster  (1853),  11  Cush.  had  disposed  of  all  of  the  dollars, 
(Mass.)  573.  Speaking  of  Pleasants  the  action  being  trover.  Gardner  v. 
v.  Pendleton, the  court  say:  "In  ref-  Dutch,  9  Mass.  427,  was  also  distin- 
erence  to  this  case,  Grimke,  J.,  in  guished  if  not  disapproved.  In  that 
Woods  v.  McGee,  7  Ohio,  127, 30  Am.  case  plaintiff  had  had  in  his  posses- 
Dec.  202,  says:  '  It  is  impossible  to  di-  sion  a  large  number  of  bags  of  coffee, 
vest  ourselves  of  the  impression  that  the  proceeds  of  a  voyage  he  had 
the  small  difference  between  the  ag-  made  for  W.  &  R.,  and  he  had  an  in- 
gregate  mass  and  the  quantity  sold,  terest  in  the  coffee  for  his  compensa- 
the  former  being  one  hundred  and  tion.  On  an  accounting  his  interest 
twenty-three  barrels  and  the  latter  was  determined  to  be  seventy-six 
one  hundred  and  nineteen,  may  have  bags,  and  he  delivered  the  entire 
influenced  the  decision.  It  was  a  quantity  to  W.  &  R,  taking  from 
hard  case,  and  hard  cases  make  ship-  them  their  receipt  "  for  seventy-six 
wreck  of  principles.'"  Jackson  v.  bags  of  coffee,  .  .  .  which  we 
Anderson,  4  Taunt.  24  (mpra),  was  hold  subject  to  his  order  at  any  time 
cited  and  distinguished  upon  the  he  may  please  to  call  for  the  same." 
grounds  that  the  point  was  not  raised  All  of  the  coffee  was  attached  as  the 
at  the  trial  and  that  the  defendant  property  of  W.'&  R,  and  plaintiff 

586 


CH.  IV.]  EXISTING    CHATTELS   NOT   YET   IDENTIFIED. 


[§  714. 


two  hundred  and  fifty  barrels  of  pork  out  of  a  large  quantity 
of  similar  kind  in  their  cellars,  but  the  particular  barrels  were 
never  identified.  A  bill  of  sale  was  made  out  to  them  and  they 
gave  their  notes  to  the  defendants  for  the  price.    It  was  also 


brought  replevin  against  the  officer. 
He    was   held    entitled  to  recover. 
Speaking  of  this  case  the  court  (in 
Scudder  v.  Worster)  say:  "This case, 
on  the  face  of  it,  seems  to  go  far  to 
recognize  the  right  of  one  having  a 
definite  number  of  barrels  of  any 
given  articles  mingled  in  a  common 
mass,  to  select  and  take,  to  the  num- 
ber he  is  entitled,  although  no  pre- 
vious separation  had  taken  place.    It 
is,  however,  to  be  borne  in  mind  in 
reference  to  this  case  that  it  did  not 
arise   between  vendor  and  vendee. 
The  interest  in  the  seventy-six  bags 
of  coffee  did  not  originate  by  pur- 
chase from  W.  &  R.    They  became 
the  specific  property  of  the  plaintiff 
in  that  action  on  an  adjustment  of 
an  adventure,  the  whole  proceeds  of 
which  were  in  his  hands,  and  sepa- 
rated with  the  possession  only  when 
he  took  their  accountable  receipt  for 
seventy-six  bags  held  by  them  on  his 
account.     It  did  not  raise  the  ques- 
tion, here  so  fully  discussed,  as  to 
what  is  necessary  to  constitute  a  de- 
livery, and  how  far  it  was  necessary 
to  have  a  separation  from  a  mass  of 
articles  to  constitute  a  transfer  of 
title.      Perhaps    the    circumstances 
may  well  have  warranted  that  de- 
cision, but  we  are  not  satisfied  that 
the  doctrine  of  it  can  be  properly 
applied  to  a  case  where  the  party  as- 
serts his  title  claiming  only  as  a  pur- 
chaser of  a  specific  number  of  bar- 
rels, there  having  been  no  possession 
on  his  part,  and  no  separation  of  the 
same  from  a  larger  mass  of  articles 
similar  in  kind  and  no  descriptive 


marks  to  designate  them."  The  court 
(referring  still  to  Scudder  v.  Worster) 
cited   and  approved  Hutchinson   v. 
Hunter,  7  Barr  (Pa.),  140,  where,  in 
an  action  of  assumpsit  to  recover 
payment  for  one  hundred  barrels  of 
molasses  sold  to  the  defendant  out 
of  a  lot  of  one  hundred  and  twenty- 
five  barrels,  the  whole  of  which  had 
been  destroyed  by  fire  while  on  stor- 
age before  separation  or  designation 
of  any  particular  barrels,  it  was  held 
that  the  plaintiff  could  not  *eeover, 
the  sale  never  haviug  been  consum- 
mated; and  to  Golder  v.  Ogden,  15 
Pa.  St.  528,  53  Am.  Dec.  618,  in  which, 
in  a  controversy  between  the  alleged 
buyer  of  goods  and  the  assignee  of 
the  vendor,  as  to  the  effect  of  a  con- 
tract for  the  sale  of  two  thousand 
pieces  of  wall  paper  out  of  a  slightly 
larger  lot  in  the  possession  of  the 
vendor,  the  purchaser  giving  his  note 
for  the  price  and  taking  away  one 
thousand  pieces,  the  other  to  remain 
until  called  for,  it  was  held  that  the 
remaining  one  thousand  pieces,  not 
having  been  selected  or  separated  or 
set  apart,   but  remaining   mingled 
with  other  paper  of  the  same  de- 
scription, did  not  become  the  prop- 
erty of  the  alleged  buyer  as  against 
the  assignee;  and  to  Waldo  v.  Belcher, 
11  Ired.  (N.  C.)  609,  where  a  contract 
of  sale  of  two  thousand  eight  hun- 
dred bushels  of  corn  out  of  a  lot  of 
three  thousand  one  hundred  bushels 
in  the  vendor's  store  passed  no  title, 
the  whole  having  been  destroyed  by 
fire  before  separation;  and  to  Mer- 
rill v.  Hunnewell,  13  Pick.  (Mass.)  213, 


587 


§  715.]  LAW    OF    SALE.  [BOOK    II. 

agreed  that  the  pork  should  remain  on  storage  in  the  cellar 
of  defendants,  but  at  the  risk  and  expense  of  the  purchasers. 
Shortly  after,  S.  T.  &  Co.  sold  one  hundred  barrels  of  the  pork 
to  L.,  giving  him  an  order  for  the  same  upon  the  defendants, 
who  delivered  that  quantity  to  him.  S.  T.  &  Co.  then  sold  the 
remaining  one  hundred  and  fifty  barrels  to  plaintiff,  giving 
him  a  like  order  upon  defendants.  Plaintiff  notified  defend- 
ants of  his  purchase  and  requested  them  to  hold  the  pork  on 
storage  for  him,  to  which  they  assented.  While  the  pork  was 
so  on  storage  for  plaintiff,  with  other  of  the  same  kind,  S.  T. 
&  Co.  became  insolvent,  not  having  paid  the  notes  given  by 
them  to  defendants  for  the  pork,  and  defendants  thereupon  re- 
fused to  deliver  the  one  hundred  and  fifty  barrels  to  plaintiff, 
and  he  brought  this  action  of  replevin  to  recover  them.  The 
officer  selected  one  hundred  and  fifty  barrels  from  the  stock  in 
defendants'  cellar  and  delivered  them  to  the  plaintiff. 

§  715.  .  The  court  held  that  no  title  to  this  or  any  other 

specific  one  hundred  and  fifty  barrels  had  passed  to  the  plaint- 
iff, and  that  consequently  the  action  could  not  be  maintained, 
approving  the  rule  laid  down  by  the  court  in  Pennsylvania  in 
Golder  v.  Ogden,  "  that  the  property  cannot  pass  until  there  be 
a  specific  identification  in  some  way  of  the  particular  goods 
which  the  party  bargains  for.  The  law  knows  no  such  thing 
as  a  floating  right  of  property,  which  may  attach  itself  either 
to  one  parcel  or  the  other,  as  may  be  found  convenient  after- 
wards." It  was  intimated  that  the  result  might  have  been 
different  if  the  action  had  been  simply  to  recover  the  value  of 
one  hundred  and  fifty  barrels  of  pork. 

where  a  contract  to  sell  nine  arches  of  Krautli,   Ferguson   &   Co.,   pork- 

of  brick  out  of  a  kiln  containing  a  packers    in    Louisville.     To    borrow 

larger  number  passed  no  title,  as  there  money  from  the  bank,  the  firm  at- 

had  been  no  separation  or  designa-  tempted  to  pledge  certain  of  their 

tion.  goods,  and  to  do  so  had  deposited 

Ferguson  v.  Northern  Bank  of  Ken-  two  warehouse  receipts    signed  by 

tucky  (1879),   14  Bush  (Ky.),  555,  29  them  stating  that  they  had  received 

Am.  R.  418,  is  also  an  interesting  and  on  storage  at  their  pork  house,  in 

important  case  upon  this  side.     Fer-  one  receipt  three  thousand  six  hun- 

guson  was  the  assignee  for  creditors  dred    sugar-cured    hams    weighing 

588 


CH.  IV.]  EXISTING    CHATTELS    NOT   YET    IDENTIFIED. 


[§  716. 


g  716.  The  weight  of  authority. —  In  a  late  case  in 

Pennsylvania1  it  is  said,  though  the  point  was  not  directly 
involved  and  the  conclusion  was  certainly  contrary  to  the 
earlier  cases  in  that  State,  that  "  the  weight  of  American  au- 


fifty  thousand  four  hundred  pounds, 
marked  "Krauth,  Ferguson  &  Co., 
Eclipse,"  and  in  the  other  eight  thou- 
sand two  hundred  and  fifty  sugar- 
cured  haras,  marked  "  Krauth,  Fergu- 
son &  Co.,"  which  they  would  deliver 
on  return  of  the  receipt  properly  in- 
dorsed. At  the  time  of  the  delivery 
of  these  receipts  the  hams  belonged 
to  the  firm  and  were  part  of  a  larger 
quantity  stored  in  their  warehouse. 
They  were  never  separated  or  set 
apart.  The  firm  becoming  insolvent 
made  an  assignment  to  one  Ferguson, 
who  took  possession  of  the  entire  lot 
and  sold  them  without  recognizing 
any  right  in  the  bank,  whose  loan 
had  not  been  paid.  The  action  was 
in  chancery  to  determine  the  title. 
It  was  held  that  the  bank  acquired 
no  title  or  lien.  Scudder  v.  Worster 
was  approved  and  followed,  and 
Kimberly  v.  Patchin  was  disap- 
proved. 

A  contract  for  the  sale  of  a  quan- 
tity of  cotton  ties,  part  of  a  larger 
lot,  passes  no  title  until  they  are  sep- 
arated. Fry  v.  Mobile  Savings  Bank 
(1883),  75  Ala.  473.  A  contract  for 
the  sale  of  one  hundred  ban-els  of 
corn  in  a  crib  containing  a  larger 
quantity,  nothing  being  done  to 
separate    the    part    sold    from   the 


residue,  does  not  vest  a  title  in  the 
purchaser  upon  which  he  can  main- 
tain detinue  or  trover  for  any  part  of 
the  corn.  Warten  v.  Strane  (1886), 
82  Ala.  311,  8  S.  R.  231. 

In  Morrison  v.  Dingley  (1874 ),  63 
Me.  553,  Morrison  in  Maine  ordered 
of  one  Wallace,  in  Bostol^  one  hun- 
dred and  twenty-five  g7°oss  tons  of 
coal.  Wallace  sent  a  cargo  of  about 
two  hundred  and  fifty  tons,  and  the 
whole  cargo  was  unloaded  upon  the 
wharf.  Then  Wallace,  by  his  broker, 
sold  one  hundred  and  twenty-five 
tons  to  Dingley.  Morrison  began  to 
remove  his  coal,  and  when  he  had 
removed  one  hunih-ed  and  twenty- 
five  net  tons,  Dingley  stopped  him, 
claiming  that  Morrison  should  take 
no  more  until  Dingley  had  gotten  one 
hundred  and  twenty-five  tons,  when 
the  residue  should  be  equally  divided. 
The  difference  to  Morrison  between 
the  net  and  the  gross  tons  was  fifteen 
net  tons.  Morrison  sued  Dingley  in 
trover  for  the  fifteen  tons,  but  it  was 
held  that  no  title  to  the  part  undeliv- 
ered had  passed.  The  court  cited 
with  approval  Scudder  v.  Worster,  11 
Cush.  (Mass.)  573  (ante):  Houdlette  v. 
Tallman,  14  Me.  400;  Bailey  v.  Smith, 
43  N.  H.  141  (2)Ost);  Gibbs  v.  Benja- 
min, 45  Vt.  124,  and   distinguished 


1  Brownfield  v.  Johnson  (1889).  128    as  of  part  of  the  corn  or  wheat  in  an 


Pa.  St.  254,  18  Atl.  R.  543,  6  L.  R.  A. 
48.  So  in  Cloke  v.  Shafroth  (1891), 
137  111.  393,  27  N.  E.  R.  702,  31  Am.  St. 
R.  375,  it  is  said:  "  It  is  held,  by  what 
is  probably  the  weight  of  modern 
American  decisions,  that  where  the 
sale  or  exchange  is  of  part  of  a  mass 
of  the  same  kind,  quality  and  grade, 


elevator,  separation  from  the  mass, 
or  other  specification  of  the  particu- 
lar part  sold,  is  unnecessary  to  its 
appropriation,  independent  of  the 
statute  vesting  the  ownership  in  the 
holder  of  a  warehouse  receipt."  The 
statement,  however,  was  dictum. 


589 


§  716.] 


LAW    OF    SALE. 


[book  II. 


thority  supports  the  proposition  that,  when  property  is  sold  to 
be  taken  out  of  a  specific  mass  of  uniform  quality,  title  will 
pass  at  once  upon  the  making  of  the  contract,  if  such  appears 
to  be  the  intent.     Oil  in  a  tank  and  grain  in  an  elevator  may 


Kimberly  v.  Patchin  (supra),  and 
Waldron  v.  Chase,  37  Me.  414  (cited 
in  preceding  note).  Dickerson,  J.,  de- 
livered a  forcible  dissenting  opinion. 

In  Reeder  v.  Machen  (1881),  57  Md. 
56,  there  had  been  a  contract  for  the 
sale  of  five  hundred  tons  of  coal  of 
three  different  varieties  at  different 
prices.  The  coal  was  part  of  a  larger 
quantity  lying  in  the  coal  yard,  and 
nothing  had  been  done  to  separate 
the  five  hundred  tons  from  the  resi- 
due. Afterwards  the  vendee,  with- 
out the  knowledge  or  consent  of  the 
vendors,  removed  tlu-ee  hundred  and 
eighty-five  tons.  The  vendors  be- 
came insolvent,  and  it  was  held  that 
no  title  to  any  part  of  the  five  hun- 
dred tons  had  passed,  on  the  ground 
that  not  only  separation  but  weigh- 
ing or  measuring  was  necessary. 

In  Keeler  v.  Goodwin  (1873),  111 
Mass.  490,  there  was  a  contract  of  sale 
of  one  thousand  bushels  of  corn,  "par- 
cel of  a  larger  quantity  lying  in  bulk." 
Said  the  court:  "Until  separation  in 
some  form  no  title  could  pass. 
Young  v.  Austin,  6  Pick.  280;  Mer- 
rill v.  Hunnewell,  13  Pick.  213;  Scud- 
der  v.  Worster,  11  Cush.  573;  Weld 
v.  Cutler,  2  Gray,  195;  Ropes  v.  Lane, 
9  Allen,  503,  510;  s.  C,  11  Allen,  591. 
That  it  was  on  storage  with  a  third 
party, as  warehouseman,  would  make 
no  difference  in  this  respect." 

A  sale  of  a  quantity  of  oats  to  be 
weighed  out  of  a  bin  containing  a 
larger  quantity,  accompanied  by 
payment  of  the  price,  gives  no  title, 
before  the  quantity  sold  is  separated 
from  the  bulk,  upon  which  the  ven- 
dee can  maintain  trover  against  the 


vendor  for  a  conversion  of  the  quan- 
tity sold.  Jeraulds  v.  Brown  (1888), 
64  N.  H.  606,  15  Atl.  R.  123.  A  con- 
tract to  sell  two  thousand  out  of  a 
larger  lot  of  poles  passes  no  title  until 
they  have  been  separated.  Bailey  v. 
Smith  (1861),  43  N.  H.  141. 

In  Commercial  National  Bank  v. 
Gillette  (1883),  90  Ind.  268,  a  contract 
for  the  sale  of  a  quantity  of  car 
wheels  out  of  a  larger  lot  was  held  to 
pass  no  title  until  separation.  "  There 
is  much  strife  in  the  American  cases 
upon  this  question,"  said  the  court, 
"but  none  in  the  English.  The  weight 
of  the  former  is,  perhaps,  with  the 
theory  of  appellant,  but  the  text- 
writers  are,  so  far  as  we  have  exam- 
ined, all  with  the  English  decisions. 
Our  owif  cases  are  in  harmony  with 
the  long-established  rule  of  the  com- 
mon law.  In  the  case  of  Bricker  v. 
Hughes,  4  Ind.  146,  the  English  rule 
was  approved  and  enforced.  In  Mur- 
phy v.  State,  1  Ind.  366,  the  court 
said:  '  To  render  a  sale  of  goods  valid, 
the  specific,  individual  goods  must  be 
agreed  on  by  the  parties.  It  is  not 
enough  .  .  .  that  they  are  to  be  taken 
from  some  specified  larger  stock,  be- 
cause there  still  remains  something 
to  be  done  to  designate  the  portion 
sold,  which  portion,  before  the  sale 
can  be  completed,  must  be  separated 
from  the  mass.'  This  doctrine  found 
approval  in  Scott  v.  King,  12  Ind.  203, 
and  there  are  other  cases  recognizing 
it  as  the  correct  one,  among  them 
Moffatt  v.  Green,  9  Ind.  198;  Indian- 
apolis, etc.  Ry.  Co.  v.  Maguire,  62  Ind. 
140;  Bertelson  v.  Bower,  81  Ind.  512; 
Lester  v.  East,  49  Ind.  588.    The  rule 


590 


CH.  IV.]  EXISTING    CHATTELS   NOT   TET    IDENTIFIED. 


[§  Tie. 


serve  as  illustrations  of  this  rule.  Where,  however,  the  prop- 
erty sold  is  part  of  a  mass  made  up  of  units  of  unequal  quality 
or  value,  such  as  cattle  in  a  herd,  selection  is  essential  to  the 
execution  of  the  contract,  and  of  course  the  rule  cannot  apply. 


which  our  court  has  adopted  is 
upheld  by  the  American  cases  of 
Hutchinson  v.  Hunter,  7  Pa.  St.  140; 
Haldeman  v.  Duncan,  51  Pa.  St.  66; 
Fuller  v.  Bean,  34  N.  H.  290;  Ocking- 
ton  v.  Richey,  41  N.  H.  275;  Morrison 
v.  Woodley,  84  111.  192;  Woods  v.  Mc- 
Gee,7  Ohio,  127;  McLaughlin  v.  Piatti, 
27  Cal.  452;  Court  right  v.  Leonard, 
11  Iowa,  32;  Ropes  v.  Lane,  9  Allen 
(Mass.),  502;  Ferguson  v.  Northern 
Bank,  14  Bush  (Ky.j,  555,  29  Am.  R. 
418.  .  .  .  The  American  cases 
which  have  departed  from  the  long- 
settled  rule  are  built  on  the  cases  of 
Kimberly  v.  Patchin,  19  N.  Y.  330. 
and  Pleasants  v.  Pendleton,  6  Rand. 
( Va.)  473,and  these  cases  proceed  upon 
the  theory  that  commercial  interests 
demand  a  modification  of  the  rule. 
In  our  judgment,  commercial  inter- 
ests are  best  promoted  by  a  rigid  ad- 
herence to  the  rule  which  the  sages 
of  the  law  have  so  long  and  so 
strongly  approved." 

In  Blakely  v.  Patrick,  Adm'r  (1870), 
67  N.  C.  40,  12  Am.  R.  600,  where  a 
mortgage  was  given  by  a  buggy 
maker  upon  "  ten  new  buggies,"  but 
the  particular  buggies  had  never  been 
selected,  and  it  appeared  that  those 
actually  in  the  mortgagor's  posses- 
sion when  the  instrument  was  exe- 
cuted had  been  disposed  of  and  others 
built  to  take  their  places,  it  was  held 
that  no  interest  in  any  particular 
buggies  passed  to  the  mortgagee. 

In  New  England,  etc.  Co.  v.  Wors- 
ted Co.  (1896),  165  Mass.  328,  43  N.  E. 
R.  112,  the  plaintiffs,  manufacturers 
of  combed  wool,  agreed  to  sell  an  un- 
ascertained number  of  pounds  of  such 


wool  to  the  defendants.  The  wool, 
after  being  combed,  was  passed  into 
bins  through  a  spout,  and  there  was 
nothing  to  distinguish  that  which 
was  made  one  day  from  that  winch 
was  made  on  any  other.  The  con- 
tract covered  all  wool  manufactured 
within  thirty  certain  days.  Held, 
that  unless  the  wool  manufactured 
on  those  days  had  been  separated 
from  the  rest  of  the  bulk  no  title 
passed. 

In  Baldwin  v.  McKay  (1867),41  Miss. 
358,  the  parties  supposed  that  the 
vendor's  stock  of  cotton,  lying  un- 
ginned,  contained  ten  bales,  and  a 
contract  of  sale  was  made  covering 
eight  bales  from  this  stock.  The 
bales  sold  were  not  separated  at  the 
time,  but  subsequently,  when  the  cot- 
ton came  to  be  ginned,  it  was  found 
to  have  rotted  in  many  places  so  that 
it  ginned  out  to  only  six  bales.  Held, 
that  no  title  passed,  and  the  fact  that 
there  turned  out  to  be  only  six  bales 
after  ginning  did  not  alter  the  case. 

Sale  of  part  of  a  bin  of  wheat  passes 
no  title  before  separation.  Cook  v. 
Logan  (1858),  7  Iowa,  141.  So  of  a 
contract  to  sell  "  25  M  brick  off  the 
west  end  of  my  kiln."  Courtright  v. 
Leonard  (1860),  11  Iowa,  32.  See  also 
Rosenthal  v.  Risley  (1861),  11  Iowa, 
541;  Snyder  v.  Tibbals,  32  Iowa,  447; 
Coffey  v.  Quebec  Bank  (1869),  20  Up. 
Can.  C.  P.  110,  citing  Glass  v.  Whit- 
ney, 22  Q.  B.  290;  Dunlap  v.  Berry 
(1843),  5  111.  327,  39  Am.  Dec.  413;  Pol- 
lock v.  Fisher  (1849),  6  N.  B.  515; 
Stevens  v.  Eno  (1850),  10  Barb.  95 
(overruled  by  Kimberly  v.  Patchin); 
Gardiner  v.  Suydam  (1852),  7  N.  Y. 


591 


§§  717,  718.]  LAW  OF  SALE.  [LOOK  II. 

The  storage  of  oil  in  tanks  and  of  grain  in  elevators,  although 
not  universal,  is  the  usual  and  ordinary  means  employed  by 
large  dealers  in  those  commodities;  and  whilst  no  custom  of 
that  kind,  technically  speaking,  could  be  established,  the  usage 
of  the  trade  and  general  course  of  business  in  this  country  is 
well  known.  In  view  of  the  necessities  which  grow  out  of  such 
usage,  the  American  courts  have  departed  from  the  rule  ad- 
hered to  in  England,  and  have  recognized  a  rule  for  the  deliv- 
ery of  this  class  of  property  more  in  conformity  with  the 
commercial  usages  of  the  country.  A  distinction  is  made  be- 
tween those  cases  where  the  act  of  separation  is  burdensome 
and  expensive  or  involves  selection,  and  those  where  the  arti- 
cle is  uniform  in  bulk  and  the  act  of  separation  throws  no  ad- 
ditional burden  on  the  buyer." 

§  717.  .  A  number  of  special  advocates1  of  what  they 

call  the  "  new  rule,"  i.  e.,  the  rule  of  Kimherly  v.  Patcliin,  have 
also  appeared,  but  it  is  believed  that  except  in  those  cases  — 
standing  upon  distinct  ground  —  in  which  a  commercial  usage 
prevails,  the  weight  of  reason  as  well  as  authority  requires  that 
there  shall  be  a  separation  from  the  mass  before  the  title  can 
pass. 

II. 

Contracts  for  the  Sale  of  Chattels  of  a  Certain  Kind, 
Where  the  Particular  Goods  Have  Not  Yet  Been 
Designated. 

§  718.  Nature  of  subject. —  Akin  to  the  subject  of  the  last 
subdivision  is  the  question  which  arises  where  a  contract  has 

(3  Seld.)  357  (see  discussion  of  this  case  37  Miss.  353;  Lawry  v.  Ellis  (1893),  85 

in  Kimberly  v.  Patchin,  p.  339);  Mc-  Me.  500,  27  Atl.  R.  518;  Huntington 

Dougall  v.  Elliott  (1860),  20  Up.  Can.  v.  Chisholm  (1878),  61  Ga.  270;  Rail- 

Q.  B.  299;  Box  v.  Insurance  Co.  (1868),  road  Co.  v.  Burr  (1874),  51  Ga.  553; 

15  Grant's  Ch.  (Up.  Can.)  337;  Uphain  Cleveland  v.  Williams  (1867),  29  Tex. 

v.  Dodd  (1866),  24  Ark.  545;  Brown-  204,  94  Am.  Dec.  274;  Davis  v.  Hill 

ing  v.  Hamilton  (1868),  42  Ala.  484;  (1826),  3  N.  H.  382, 14  Am.  Dec.  373. 
Mobile  Bank  v.  Fry  (1881),  69  Ala.  348;        *See  particularly  the  monograph 

Gresham  v.  Bryan  (1893),  103  Ala.  629,  of  Mr.  Robert  Ralston.  "Sale  of  Un- 

15  S.  R.  849;  Thomas  v.  State  (1859),  divided  Interests''  (1885). 

532 


CH.  IV.]      EXISTING    CHATTELS   NOT   YET   IDENTIFIED.       [§§  719,  720. 

been  made  to  supply  goods  of  an  agreed  kind,  but  no  particular 
goods  are,  at  the  time,  designated  as  the  ones  to  which  the  con- 
tract is  to  apply.  The  most  common  illustration  is  where  goods 
of  a  particular  kind  are  ordered  of  a  dealer  or  manufacturer, 
the  goods  themselves  not  being  present  and  designated,  or  per- 
haps not  being  yet  in  existence,  and  the  dealer  or  manufact- 
urer is  charged  with  the  right  and  duty  of  selecting  or  desig- 
nating the  goods  which  shall  be  supplied, —  in  other  words,  of 
appropriating  the  goods  to  the  contract.  The  question  which 
arises  is,  When  does  the  title  pass  ? 

§  719.  Under  what  circumstances  question  arises. —  The 

question  arises  usually,  if  not  invariably,  either  where  some  dis- 
tance of  time  is  to  intervene  between  the  making  of  the  contract 
and  the  fulfillment  of  it,  or  where  some  distance  of  space  inter- 
venes between  the  place  of  making  the  contract  and  the  place 
of  its  fulfillment,  or  where  both  elements  exist. 

The  question  may  also  arise  under  a  great  variety  of  circum- 
stances, some  of  which  may  be  indicated  thus: 

I.  Goods  ordered  of  dealer  and  to  be  supplied;  and  — 

1.  The  vendor  is  to  deliver  the  goods,  or 

2.  The  vendee  is  to  come  and  get  the  goods,  or 

3.  The  vendor  is  to  ship  the  goods,  and  there  is  — 

(a)  A  carrier  designated,  or 

(b)  No  carrier  designated  but  some  carrier  intended,  or 

(c)  No  carrier  named  or  expressly  contemplated,  though 

the  goods  are  to  be  shipped,  and  — - 

(d)  The  consignor  is  to  pay  the  freight,  or 

(e)  The  consignee  is  to  pay  the  freight,  or 

(f)  The  title  is  to  pass  at  once  but  the  goods  are  not  to 

be  paid  for  unless  they  arrive. 
II.  Goods  to  be  supplied  by  the  producer,  and 

1.  To  be  manufactured,  or 

2.  To  be  grown. 

§  720.  What  to  be  included  here. —  Of  the  various  questions 
thus  suggested,  those  falling  under  the  first  head  will  be  dealt 
with  here,  while  those  falling  under  the  second  will  be  con- 

38  593 


§§   721,  722.]  LAW    OF    SALE.  [BOOK    II. 

sidered  in  the  following  chapter.  And  the  specific  question 
will  be,  Where  a  contract  is  made  for  the  sale  of  existing 
goods  of  a  certain  kind,  but  the  particular  goods  are  not  yet 
designated,  what  must  be  done  in  order  that  the  title  to  some 
goods  of  this  kind  shall  pass? 

For  the  purposes  of  an  orderly  discussion  of  the  question,  the 
following  subdivisions  may  be  suggested : 

1.  Of  appropriation  in  general. 

2.  Of  appropriation  where  the  seller  is  to  carry  the  goods. 

3.  Of  appropriation  where  the  buyer  is  to  come  for  the  goods. 

4.  Of  appropriation  where  the  seller  is  to  send  for  the  goods 
by  carrier. 

5.  Of  appropriation  where  goods  are  consigned  on  account  of 
previous  advances. 

1.  Of  Appropriation  in  General. 

§721.  General  necessity  for  appropriation.  —  Upon  the 
making  of  a  contract  for  the  sale  of  a  part  of  a  larger  mass  of 
goods,  as  seen  in  the  last  subdivision,  or  of  goods  thereafter  to 
be  supplied,  no  particular  goods,  however,  being  designated, 
it  is  clear  that  no  present  title  does  or  can  thereby  pass.  The 
contract  at  this  point  is  purely  executory,  and  it  cannot  be  ef- 
fectual to  transfer  title  until  it  has  become  attached  to  some 
specific  goods  upon  which  it  can  operate.  What  is  essential 
now  is  the  appropriation  of  the  goods  to  the  contract,,  and 
when  this  occurs  the  contract  becomes  executed  and  the  title 
is  transferred.1 

§  722.  What  is  meant  by  appropriation.— "The  word  appro- 
priation," said  Baron  Parke  in  one  case,2  "  may  be  understood 
in  different  senses.  It  may  mean  a  selection  on  the  part  of  the 
vendor,  where  he  has  the  right  to  choose  the  article  which  he 
has  to  supply  in  performance  of  his  contract;  and  the  contract 
will  show  when  the  word  is  used  in  that  sense.     Or  the  word 

i  See  Merchants'  Nat.  Bank  v.  Van  Deusen,  33  Minn.  Ill,  22  N.  W. 
Bangs,  102  Mass.  291;    Fis'.iback  v.     R.  244. 

2  Wait  v.  Baker  (1848),  2  Exch.  1. 
594 


CH.  IV.]  EXISTING    CHATTELS    NOT    YET    IDENTIFIED.  [§   723. 

may  mean  that  loth  parties  have  agreed  that  a  certain  article 
shall  be  delivered  in  pursuance  of  the  contract,  and  yet  the 
property  may  not  pass  in  either  case.1  .  .  .  ' 'Appropriation'' 
may  also  be  used  in  another  sense,  .  .  .  viz.:  where  both 
parties  agree  upon  the  specific  article  in  which  the  property  is 
to  pass,  and  nothing  remains  to  be  done  in  order  to  pass  it." 

§723.  Who  interested  in  question. —  The  fact  of  the  ap- 
propriation may  be  of  interest  to  several  parties.  It  is,  of 
course,  chiefly  of  interest  to  the  buyer  and  seller,  but  creditors 
and  subsequent  purchasers  may  be  interested  as  well.  Until 
appropriation  the  goods  are  still  the  seller's,  and  the  risk  is  his. 
If  he  has  begun  but  not  finally  completed  the  appropriation, 
he  may  change  his  mind  and  substitute  other  goods.  If  the 
appropriation  is  complete,  the  goods  belong  to  the  seller  and 
he  has  the  right  to  those  particular  goods. 

If  the  appropriation  is  not  complete  the  goods  are  still  the 
seller's  and  may  be  taken  for  his  debts;  if  it  is  complete,  they 
are  the  buyer's  and  may  be  seized  upon  process  against  him. 

If  the  appropriation  is  not  complete,  the  seller  may  sell  the 
goods  to  another;2  if  it  is  complete,  the  seller,  at  least,  would 

1  Continuing  here  the  learned  judge  particular  carriage  — which,  in  the 
further  said:  "For  the  purpose  of  Roman  law,  was  called  obligate certi 
illustrating  this  position,  suppose  a  corporis,  where  a  person  is  bound 
carriage  is  ordered  to  be  built  at  a  to  deliver  a  particular  chattel,  but 
coach- maker's;  he  may  make  any  one  where  the  property  does  not  pass,  as 
he  pleases  and,  if  it  agree  with  the  it  never  did  by  the  Roman  law,  until 
order,  the  party  is  bound  to  accept  actual  delivery,  although  the  prop- 
it.  Now.  suppose  that,  at  some  period  erty,  after  the  contract,  remain;',  1  at 
subsequent  to  the  order,  a  further  the  risk  of  the  vendee,  and,  if  lost 
bargain  is  entered  into  between  this  without  any  fault  in  the  vendor,  the 
party  and  the  coach-builder  by  which  vendee  and  not  the  vendor  was  the 
it  is  agreed  that  a  particular  carriage  sufferer.  The  law  of  England  is  dif- 
shall  be  delivered.  It  would  depend  ferent:  here  property  does  not  pass 
upon  circumstances  whether  the  until  there  is  a  bargain  with  respect 
property  passes  or  whether  merely  to  a  specific  article  and  everything 
the  original  contract  is  altered,  from  is  done  which,  according  to  the  in- 
one  which  would  have  been  satisfied  tention  of  the  parties  to  the  bargain, 
by  the  delivery  of  any  carriage  an-  was  necessary  to  transfer  the  prop- 
swering  the  terms  of  the  contract,  erty  in  it." 

into  another  contract  to  supply  the        2  Walker  v.   Collier  (1865),  37  111. 

595 


§§  724,  725.]  LAW  OF   SALE.  [cook   II. 

be  liable  if  he  should  so  dispose  of  them,  and  if  the  delivery 
were  sufficient  the  first  purchaser  could  recover  them.1 

§  724.  Who  may  make  the  appropriation.— The  act  of  ap- 
propriation may,  by  the  terms  of  the  agreement,  be  devolved 
either  upon  the  vendor  or  the  vendee;  or  it  may  be  left  to  be 
made  by  one  party  and  assented  to  by  the  other.  In  the  ma- 
jority of  cases,  however,  for  reasons  which  will  be  obvious,  the 
appropriation  is  to  be  made  by  the  vendor.  Mr.  Benjamin 
states  the  rule  as  follows:  "  The  rule  on  the  subject  of  election 
is  that  when,  from  the  nature  of  the  agreement,  an  election  is 
to  be  made,  the  party  who  is  by  the  agreement  to  do  the  first 
act,  which,  from  its  nature,  cannot  be  done  till  the  election  is 
determined,  has  authority  to  make  the  choice,  in  order  that  he 
may  be  able  to  do  that  first  act,  and  when  once  he  has  done 
that  act  the  election  has  been  irrevocably  determined,  but  till 
then  he  may  change  his  mind." 2 

§  725.  .  He  quotes  further  the  rule  laid  down  by  Lord 

Blackburn,3  and  approved  by  the  courts,4  to  the  effect  "  that 
where,  from  the  terms  of  an  executory  agreement  to  sell  un- 
specified goods,  the  vendor  is  to  dispatch  the  goods  or  do  any- 
thing to  them  that  cannot  be  done  till  the  goods  are  appropri- 
ated, he  has  the  right  to  choose  what  the  goods  shall  be;  and 
the  property  is  transferred  the  moment  the  dispatch  or  other 
act  has  commenced,  for  then  an  appropriation  is  made  finally 
and  conclusively  by  the  authority  conferred  in  the  agreement,5 

362;  Cole  v.  Bryant  (1895),  73  Miss,  defendant  a  quantity  of  butter  of 

297,  18  S.  R  655;  North  Pacific  Lum-  the  same  kind  and  quality  that  he 

bering  Co.  v.  Kerron  (1892),  5  Wash,  had  previously  bought  of  them  at  a 

214,  31  Pac.  R  595.  certain  price,  provided  he  accepted 

i  See  Hagins  v.  Combs  (1897),  102  before  twelve  o'clock  the  following 

Ky.  165,  43  S.  W.  R  222.  day.     Within   that  time  defendant 

2  Bennett's  6th  Am.  ed.,  §  359.  accepted  the  offer  by  telegram.    Said 

3 Blackburn  on  Sale,  128.  the  court:    "The  plaintiffs  had   in 

4  Aldridge  v.  Johnson,  7  E.  &  B.  their  store-house  a  large  quantity  of 
885,  901,  per  Erie,  J.  butter.     Upon  receipt  of  the  defend- 

5  In  Mitchell  v.  Le  Claire  (1896),  165  ant's  telegram  accepting  their  offer 
Mass.  308,  43  N.  E.  R  117,  the  plaint-  they  were  immediately  authorized, 
iffs  had  orally  offered  to  sell  to  the  as  the  defendant's  agents,  to  set  apart 

596 


CH.  IV.]       EXISTIXG    CHATTELS    NOT    YET    IDENTIFIED.       [§§  726,  727. 

and,  in  Lord  Coke's  language,  'the  certainty,  and  thereby  the 
property,  begins  by  election.'  But  however  clearly  the  vendor 
may  have  expressed  an  intention  to  choose  particular  goods, 
and  however  expensive  may  have  been  his  preparations  for 
performing  the  agreement  with  those  particular  goods,  yet, 
until  the  act  has  actually  commenced,  the  appropriation  is  not 
yet  final,  for  it  is  not  made  by  the  authority  of  the  other  party 
nor  binding  on  him." 

§  726.  What  constitutes  appropriation  in  general.— What 

act  shall  be  sufficient  to  constitute  an  appropriation  cannot  be 
determined  by  any  inflexible  rule.  In  general,  however,  that 
act  or  series  of  acts  constitutes  an  appropriation  which  fully 
and  finally  designates  the  particular  chattel  upon  which  the 
contract  is  to  operate.  Appropriation,  as  will  be  seen  in  the 
following  section,  is  the  act  of  one  party  or  of  both.  It  is 
primarily  the  act  of  both  parties,  and  can  only  become  the  act 
of  one  alone  when  the  other  has  expressly  or  impliedly  agreed 
that  he  may  make  it.  Until  finally  and  completely  consum- 
mated it  is  revocable  by  either  party;  when  finally  and  com- 
pletely consummated,  whether  by  the  act  of  both  parties  or  of 
one  with  the  consent  of  both,  it  is  irrevocable  except  with  the 
consent  of  both. 

§  727.  Appropriation  consists  of  acts,  not  mere  in- 
tention.—  Appropriation  must  clearly  be  an  act  and  not  a 
mere  intention.  It  must  also  be  a  definite  and  unequivocal  act, 
done  in  pursuance  and  contemplation  of  the  contract,  with  the 
intention  of  bringing  the  designated  chattel  and  the  contract 

and  appropriate  to  him  the  goods  4  Cush.  (Mass.)  33,  37,  50  Am.  Dec.  754; 

called  for  by  the  contract.   This  they  Eopes  v.  Lane,  9  Allen  (Mass.),  502, 

immediately  did,  weighing  the  but-  510;    Merchants'  National   Bank  v. 

ter,  setting   it  apart  and  marking  Bangs,  102  Mass.  291,  295;  Marble  v. 

each  tub  for  the  purpose  of  desig-  Moore,  102  Mass.  443;  Morse  v.  Sher- 

nating  it  as  the   defendant's  prop-  man,  106  Mass.  430;  Safford  v.  Mc- 

erty.     They  then  at  once  sent  him  a  Donough,  120  Mass.  290;  Gilmour  v. 

bill  of  all  of  it,  marked  'eash  on  de-  Supple,  11  Moore,  P.  C.  551,  550;  Tar- 

mand.'    This  completed  the  sale  and  ling  v.  Baxter,  6  B.  &  C.  360." 
passed  the  title.     Ax-nold  v.  Delano, 

597 


!7.] 


LAW    OF    SALE. 


[BOOK   II. 


into  mutual  operation  and  with  the  purpose  of  thereb}7  fulfill- 
ing the  contract.  In  a  leading  case  *  in  which  there  had  been 
a  contract  for  the  sale  of  a  quantity  of  barley  out  of  a  larger 
and  ascertained  mass,  to  be  put  into  the  vendee's  sacks  by  the 
vendor,  it  was  held  that  as  soon  as  the  vendor  had  filled  a  sack 
he  had  appropriated  that  much  to  the  contract  irrevocably 
(though  he  never  filled  the  entire  number  of  sacks),  and  that 
the  title  had  thereupon  passed,  so  that  if  he  emptied  the  con- 
tents of  the  sack  back  into  the  mass  the  vendee  could  recover 
its  value.  Said  Erie,  J. :  "  When  he  had  done  the  outward  act 
which  showed  what  part  was  to  be  the  vendee's  property,  his 
election  was  made  and  the  property  passed.  That  might  be 
shown  by  sending  the  goods  by  the  railway;  and  in  such  casj 


i  Aldridge  v.  Johnson  (1857),  7  El. 
&  Bl.  885.  In  this  case  Aldridge 
made  a  contract  with  Knights  to 
trade  a  lot  of  cattle  towards  one  hun- 
dred out  of  two  hundred  quarters  of 
barley  agreed  upon  and  to  pay  the 
balance  in  cash.  It  was  agreed  that 
Aldridge  should  send  his  own  sacks 
to  be  filled  witli  the  barley  and 
Knights  was  to  fill  the  sacks,  take 
them  to  a  railway  station,  put  them 
on  cars  free  of  charge  and  send  them 
to  Aldridge.  Aldridge  send  the  sacks 
and  delivered  the  cattle  to  Knights. 
Some  of  the  sacks  were  marked  with 
Aldridge's  name.  Knights  filled  one 
hundred  and  fifty-five  of  the  two 
hundred  sacks  sent,  but  could  not 
get  the  cars  to  send  them.  Aldridge 
made  several  demands  to  have  the 
barley  sent  and  Knights  assured  him 
it  would  be  sent  as  soon  as  he  could 
get  the  cars.  Before  it  had  been 
sent  Knights  became  insolvent  and 
emptied  the  contents  of  the  one  hun- 
dred and  fifty-five  sacks  back  into 
the  pile.  Johnson  was  the  assignee 
of  Knights  and  refused  to  surrender 
any  part  of  the  barley,  and  this  ac- 
tion was  brought  to  recover  the  en- 


tire quantity  bargained  for.  Held, 
that  plaintiff  could  recover  for  the 
one  hundred  and  fifty-five  sacks  but 
not  for  the  residue  which  had  never 
been  appropriated. 

Campbell,  C.  J.,  said:  "Looking  to 
all  that  was  done,  when  the  bank- 
rupt put  the  barley  into  the  sacks  eo 
instantithe  property  in  each  sackful 
vested  in  the  plaintiff.  I  consider 
that  here  was  a  priorian  assent  by 
the  plaintiff.  He  had  inspected  and 
approved  of  the  barley  in  bulk.  He 
sent  his  sacks  to  be  filled  out  of  that 
bulk.  There  can  be  no  doubt  of  his 
assent  to  the  appropriation  of  such 
bulk  as  should  have  been  put  into 
the  sacks."  In  speaking  of  this  case 
in  the  later  case  of  Langton  v.  Hig- 
gins  (1859),  4  H.  &  N.  402,  Pollock, 
C.  B.,  said:  "I  doubt  whether  it  was 
necessary  to  tie  up  the  sacks,  or  do 
anything  more  than  put  the  barley 
in  them;  as  when  goods  are  put  on 
board  a  ship  it  is  not  necessary  to 
stow  down  the  hatchway:  the  filling 
the  sacks  with  the  barley  was  a  de- 
cisive act  of  appropriation  and  de- 
livery." 


598 


CH.  IV.]  EXISTING    CHATTELS    NOT    YET    IDENTIFIED.  [§  728. 

the  property  would  not  pass  till  the  goods  were  dispatched. 
"But  it  might  also  be  shown  by  other  acts.  Here  was  an  ascer- 
tained bulk,  of  which  the  plaintiff  agreed  to  buy  about  half. 
It  was  left  to  the  vendor  to  decide  what  portion  should  be  de- 
livered under  that  contract.  As  soon  as  he  does  that  his  elec- 
tion has  been  indicated ;  the  decisive  act  was  putting  the  portion 
into  the  sacks."  This  decision  has  been  followed  in  several 
other  cases  where  the  goods  were  to  be  put  into  the  buyer's 
receptacles,  the  title  being  held  to  pass  as  soon  as  they  were  so 
placed.1 

§  728.  Acts  must  be  in  fulfillment  of  the  contract.— 

But  in  these  and  other  cases  the  act  done  must,  as  has  been 
stated,  be  done  in  fulfillment  of  the  contract.  Acts  done,  there- 
fore, looking  toward  fulfillment  or  in  partial  fulfillment  only 
are  not  enough  to  constitute  an  appropriation.  If,  then,  for 
illustration,  the  contract  provides  for  a  boatful  of  goods,  there 
is  no  appropriation  until  there  is  a  boatful,  and  the  property 
does  not  pass  as  it  goes  into  the  boat  so  as  to  charge  the  vendee 
with  the  loss,  or  give  him  a  right  of  action  for  conversion,  if 
the  property  be  destroyed  or  diverted  before  the  boat  is  full,2 
even  though  the  boat  be  one  furnished  by  the  vendee.3 

i  Thus  in  Langton  v.  Higgins  (1859),  recovery  of  the  value  of  two  cargoes 

4  H.  &  N.  402,  under  a  contract  for  of  oats,  one  on  board  boat  No.  604 

the  sale  of  a  crop  of  peppermint  oil  and  the  other  on  board  boat  No.  54. 

to  be  put  into  the  vendee's  bottles,  it  The  facts,  as  stated  by  the  court, 

was  held  that  the  putting  of  the  oil  were  as  follows:   Miles  Tempany,  a 

into  the  bottles  was  such  an  appro-  corn  merchant  at  Longford,  who  em- 

priation  as  passed  the  title  as  against  ployed  the  plaintiffs  as  his  factors  at 

another  vendee  of  the  vendor.  Liverpool,  shipped  on  board  the  boat 

2  The  leading  case  of  Bryans  v.  Nix  No.  604  a  full  cargo  of  oats  and  took  a 

(1839),  4  M.  &  W.  775,  is  of  this  char-  bill  of  lading  or  boat  receipt  for  them, 

acter.    The  action  was  trover  for  the  signed  by  the  master,  bearing  date 


3  Thus,  in    Rochester    Oil    Co.    v.  and  was  destroyed,    Held,  that  the 

Hughey  (1867),  56  Pa.  St.  322,  there  title  did  not  pass  as  the  oil  ran  in  or 

was  a  contract  for  four  boat-loads  of  until    there  was    a    boat-load,  and 

oil,  to  be  drawn  from  tanks  into  the  hence  that  the  loss  fell  on  the  seller. 

purchaser's  boats,  and  to  be  paid  for  To  same  effect:  Hayes  v.  Pittsburg 

at  so  much  per  barrel.    While  one  Co.  (1888),  33  Fed.  R.  552. 
boat  was  being  filled  it  caught  fire 

599 


729.] 


LAW    OF    SALE. 


[book  IL 


§  729.  Assent  to  the  appropriation.— It  inheres  in  the  very 
nature  of  the  case  that  appropriation  can  only  be  made  with 
the  assent  of  both  parties,  for  until  they  have  determined  upon 
the  chattel  which  is  to  be  sold  there  can  obviously  be  no  com- 


the  31st  of  January,  1837,  whereby    the  boat  receipt  or  bill  of  lading  for 


he  acknowledged  the  receipt  of  the 
oats  on  board,  deliverable  in  Dublin 
to  John  and  T.  Delany,  in  care  for 
and  to  be  shipped  to  the  plaintiffs 
in  Liverpool.  On  the  same  day  he 
procured  from  the  master  of  another 
boat,  No.  54,  a  like  bill  of  lading  or 
receipt  for  five  hundred  and  thirty 
barrels,  but  no  oats  were  then  on 
board  that  boat,  although  a  cargo 
was  prepared  for  that  purpose.  On 
the  2d  of  February  Tempany  wrote 
to  the  plaintiffs  a  letter  inclosing 
both  those  instruments  and  stating 
that  he  had  valued  on  the  plaintiffs 
for  730Z.  against  those  oats.  On  the 
7th  the  plaintiffs  received  this  letter 
and  accepted  the  bill  of  exchange 
and  returned  it  to  Tempany,  who  re- 
ceived it  on  the  9th.  In  the  mean- 
time the  defendant,  who  was  a  cred- 
itor of  Tempany  to  a  considerable 
amount,  sent  over  Mr.  Walker,  an 
agent,  to  Longford.  Walker  arrived 
on  the  6th  and  pressed  him  for  secu- 
rity. Tempany  consented  on  that 
day  to  give  him  an  order,  addressed 
to  Tempany's  brother,  his  agent  in 
Dublin,  requesting  him  to  deliver  to 
Walker,  for  the  defendant,  the  cargo 
of  boat  604,  which  had  then  sailed 
for  Dublin,  and  four  other  cargoes, 
including  that  of  boat  54  (which  was 
stated  to  be  five  hundred  and  sixty 
barrels),  and  also  all  that  was  in 
Tempany's  store  in  Dublin.  The 
boat  54  was  then  partially  loaded, 
and  Tempany  promised  to  send  the 
boat  receipt  for  it  to  Walker.  The 
loading  was  completed  on  the  9th, 


five  hundred  and  fifty  barrels,  which 
were  on  board,  signed  by  the  master 
and  transmitted  to  Walker,  to  whom 
the  cargo  was  made  deliverable,  and 
he  received  it  the  next  day.  The 
boats  were  both  hired  by  Tempany 
and  the  men  paid  by  him.  Walker, 
on  the  8th,  procured  an  agreement 
from  J.  Tempany,  in  Dublin,  to  hold 
the  oats  for  him  when  they  arrived, 
and  he  afterwards  got  possession  of 
the  whole  by  legal  process.  As  to 
boat  604,  the  court  held  that  there 
was  a  sufficient  appropriation  to  pass 
the  title  to  the  plaintiffs,  "»at  least 
on  the  7th  of  February,  when  they 
complied  with  the  condition  by  ac- 
cepting the  bill,  and  before  the  7th 
no  other  title  to  the  oats  intervened, 
for  the  order  to  deliver  them  to 
Walker,  given  on  the  6th,  was  clearly 
executory  only."  But  the  claim  of 
the  plaintiffs  to  the  cargo  of  boat 
No.  54  was  denied.  Said  the  court, 
by  Parke,  B. :  "At  the  time  of  the 
agreement,  proved  by  the  bill  of 
lading  or  boat  receipt  of  the  31st 
of  January,  to  hold  the  five  hundred 
and  thirty  barrels  therein  mentioned 
for  the  plaintiff,  there  were  no  such 
oats  on  board,  and  consequently  no 
specific  chattels  which  were  held  for 
them.  The  undertaking  of  the  boat 
master  had  nothing  to  operate  upon, 
and,  though  Miles  Tempany  had  pre- 
pared a  quantity  of  oats  to  put  on 
board,  those  oats  still  remained  his 
property;  he  might  have  altered 
their  destination  and  sold  them  to 
any  one  else ;  the  master's  receipt  no 


600 


CH.  IV.]  EXISTING   CHATTELS    NOT   YET    IDENTIFIED.  [§  729. 

pleted  contract  of  sale.1  The  assent,  however,  need  not  be  ex- 
press, nor  need  it  be  made  subsequent  to  the  act.  Either 
party,  moreover,  may  expressly  or  impliedly  agree  beforehand 
that  the  other,  or  some  third  person,  may  make  the  appropria- 


more  attached  to  them  than  to  any- 
other  quantity  of  oats  belonging  to 
Tempany.     If,  indeed,  after  the  31st 
of  January,  these  oats  so  prepared,  or 
any  other  like  quantity,  had    been 
put  on  board  to  the  amount  of  five 
hundred  and  thirty  barrels,  or  less, 
for  the  purpose  of  fulfilling  the  con- 
tract, and  received  by  the  master  as 
such,  before  any  new  title  to  these 
oats  had  been  acquired  by  a  third, 
person,  we  should  have  probably  held 
that  the  property  in  these  oats  passed 
to  the  plaintiff,  and  that  the  letter 
and  receipt,  though  it  did  not  operate, 
as  it  purported  to  do,  as  an  appro- 
priation of  any  existing  specific  chat- 
tels, at  least  operated  as  an  executory 
agreement    by    Tempany    and    the 
master  and  the  plaintiffs  that  Tem- 
pany should  put  such  a  quantity  of 
oats  on  board  for  the  plaintiffs,  and 
that  when  so  put  the  master  should 
hold  them  on  their  account;    and 
when  that  agreement  ivas  fulfilled, 
then,  but  not  otherwise,  they  would 
become  their  property.     But  before 
the  complete  quantity  of  five  hun- 
dred and  thirty  barrels  was  shipped, 
and  when  a  small  quantity  of  oats 
only  were  loaded,  and  before  any  ap- 
propriation of  oats  to  the  plaintiffs 
had  taken  place,  Tempany  was  in- 
duced to  enter  into  a  fresh  engage- 
ment with  the  defendant  to  put  on 
board  for  him  a  full  cargo  for  No.  54, 
by  way  of  satisfaction  for  the  debt 
due  him ;  for  such  is  the  effect  of  the 
delivery  order  of  the  6th  and  the 
agreement  with  Walker  of  the  same 
date  to  send  the  boat  receipt  for  the 


cargo  of  that  vessel.  Until  the  oats 
were  appropriated  by  some  new  act, 
both  contracts  were  executory;  on 
the  9th  the  appropriation  took  place, 
by  the  boat  receipt  for  the  five  hun- 
dred and  fifty  barrels  then  on  board, 
which  was  signed  by  the  master  at 
the  request  of  Tempany,  whereby 
the  master  was  constituted  the  agent 
of  the  defendant  to  hold  those  goods; 
and  this  was  the  first  act  by  which 
these  oats  were  specifically  appropri- 
ated to  any  one.  The  maste*  might 
have  insisted  on  Tempany's  putting 
on  board  oats  to  the  amount  of  the 
first  bill  of  lading,  on  account  of  the 
plaintiffs,  but  he  did  not  do  so." 

1  Upon  this  point  the  language  of 
Lord  Blackburn  is  instructive:  "It 
has  been  already  said  that  the  spe- 
cific goods  must  be  agreed  upon; 
that  is,  both  parties  must  be  pledged, 
the  one  to  give  and  the  other  to  ac- 
cept those  specific  goods.  This  is  ob- 
viously just,  for  until  both  parties 
are  so  agreed  the  appropriation  can- 
not be  binding  upon  either;  not  upon 
the  one,  because  he  has  not  con- 
sented, nor  upon  the  other,  because 
the  first  is  free.  But  the  application 
of  this  principle  leads  to  nice  and 
subtle  distinctions,  which  perhaps 
cannot  be  helped,  but  are  none  the 
less  to  be  lamented.  "When  the  goods 
are  selected  from  the  first  in  the 
original  agreement  there  is  of  course 
no  difficulty  on  the  point;  both  par- 
ties are  then  bound  to  apply  the  con- 
tract to  those  specific  goods.  Neither 
is  there  any  difficulty  where  both 
parties  have  subsequently  assented 


601 


729.] 


LAW    OF    SALE. 


[BOOK    II. 


tion,  and  an  appropriation  so  made  is  therefore  with  his  assent. 
In  other  words,  the  assent  may  be,  and  frequently  is,  anticipa- 
tive,  and  may  be  given  by  one  through  the  agency  of  the  other. 
Thus,  for  example,  is  it  usually,  where  goods  of  a  certain  kind 
are  ordered  to  be  supplied  by  a  dealer :  the  buyer  beforehand 
impliedly  assents  that  the  seller  may  determine  which  goods 
of  that  kind  shall  be  furnished.1  So  is  it  also  where  the  vendee 
is  to  select  the  goods  from  a  larger  mass:  the  vendor  before- 
hand assents  that  such  goods  shall  pass  as  the  vendee  may  so 
select.2  In  either  case,  therefore,  when  the  party  charged  with 
the  duty  of  selection  has  finally  and  conclusively  selected  and 
determined  the  goods  of  the  kind  agreed  upon,  the  appropria- 
tion is  made  and  the  contract  is  complete  without  the  neces- 
sity of  any  subsequent  assent  by  the  other. 


to  the  appropriation  of  some  specific 
goods  to  fulfill  an  agreement  that  in 
itself  does  not  ascertain  which  the 
goods  are  to  be.  The  effect  is  then  the 
same  as  if  the  parties  had  from  the 
first  agreed  upon  a  sale  of  those  spe- 
cific goods.  In  the  accurate  language 
of  Holroyd,  J.  (Rhode  v.  Thwaites,  6 
B.  &  C.  388),  'the  selection  of  the 
goods  by  the  one  party  and  the  adop- 
tion of  that  act  by  the  other  converts 
that  which  before  was  a  mere  agree- 
ment to  sell  into  an  actual  sale,  and 
the  property  thereby  passes.' 

"  But  the  difficulty  arises  when  the 
original  agreement  does  not  ascer- 
tain the  specific  goods,  and  one  party 
has*  appropriated  some  particular 
goods  to  the  agreement,  but  the 
other  party  has  not  subsequently  as- 
sented to  such  an  appropriation. 
Such  an  appropriation  is  revocable 
by  the  party  who  made  it,  and  not 
binding  on  the  other  party,  unless  it 
was  made  in  pursuance  of  an  author- 
ity to  make  the  election  conferred 
by  agreement,  or  unless  the  act  is 
subsequently  and  before  its  revoca- 
tion adopted  by  the  other  party.     In 


either  case  it  becomes  final  and  ir- 
revocably binding  on  both  parties. 

"The  question  of  whether  there 
had  been  a  subsequent  assent  or  not 
is  one  fact;  the  other  question  of 
whether  the  selection  by  one  party 
merely  showed  an  intention  in  that 
party  to  appropriate  those  goods  to 
the  contract,  or  showed  a  determina- 
tion of  a  right  of  election,  is  one  of 
law,  and  sometimes  of  some  nicety." 
Blackburn  on  Sale,  p.  129. 

!Thus,  in  Aldridge  v.  Johnson 
(1857),  7  El.  &  Bl.  885,  901,  Erie,  J., 
says:  "If  the  thing  sold  is  not  ascer- 
tained, and  something  is  to  be  done 
before  it  is  ascertained,  it  does  not 
pass  till  it  is  ascertained.  Some- 
times the  right  of  ascertainment 
rests  with  the  vendee,  sometimes 
solely  witli  the  vendor.  Here  it  is 
vested  in  the  vendor  only.  When 
he  had  done  the  outward  act  which 
showed  which  part  teas  to  be  the 
vendee's  property,  his  election  luas 
made,  and  the  property  passed." 

Many  other  cases  are  cited  in  the 
notes  to  the  following  sections. 

2  See  ante,  §  703,  and  cases  cited. 


G02 


CH.  IV.]  EXISTING    CHATTELS    NOT    TET    IDENTIFIED.  [§  730. 


§  730. 


Buyer's  assent  made  necessary  by  terms  of 


contract. —  But  the  parties  may  expressly  or  impliedly  agree 
that  the  appropriation  shall  not  be  deemed  complete  until  the 
vendee  has  assented,  and  in  such  a  case  the  vendee's  assent,  if 
not  waived,  is  indispensable:  until  it  is  given,  appropriation 
by  the  vendor  alone  binds  nobody,  not  even  himself,  and  he 
may  therefore  recall  it.1 


JSee  Blackburn  on  Sale.  p.  129, 
supra;  Andrews  v.  Cheney,  follow- 
ing. In  Andrews  v.  Cheney  (1882', 
62  X.  H.  404,  plaintiff  bought  goods  of 
defendant  by  sample  and  paid  for 
them.  Defendant  did  not  then  have 
the  goods  in  stock,  but  was  to  get 
them  by  a  certain  time,  when  the 
defendant  was  to  call  for  them. 
Within  that  time  defendant  pro- 
cured the  goods,  set  them  apart  by 
themselves  and  marked  them  with 
the  plaintiff's  name.  The  plaintiff 
did  not  call  for  them  within  the  stip- 
ulated time,  and  after  that  time  had 
elapsed  the  goods  were  destroyed  by 
the  burning  of  defendant's  store. 
The  plaintiff  brought  this  action  to 
get  back  the  price  he  had  paid  for 
them.  Said  the  court:  "The  prop- 
erty in  the  goods  did  not  pass  to  the 
plaintiff  by  virtue  of  the  contract, 
for  they  were  not  then  ascertained, 
and  may  not  have  been  in  existence. 
The  agreement  on  the  part  of  the 
defendant  was  executory.  He  agreed 
to  furnish  goods  corresponding  to 
the  samples  selected  by  the  plaintiff. 
If  the  goods,  subsequently  procured 
and  set  apart  by  the  defendant,  did 
not  conform  to  the  samples,  the 
plaintiff  had  a  right  to  reject  them. 
It  does  not  appear  that  he  waived 
that  right.  The  defendant  was  not 
concluded  by  his  selection ;  he  might 
have  sold  or  otherwise  disposed  of 
the  particular  articles  set  apart  by 


him.  and  substituted  others  in  their 
place.  A  contract  of  sale  is  not  com- 
plete until  the  specific  goods  upon 
which  it  is  to  operate  are  agreed 
upon.  Until  that  is  done  the  con- 
tract is  not  a  sale,  but  an  agreement 
to  sell  goods  of  a  particular  descrip- 
tion. It  is  performed  on  the  part  of 
the  vendor  by  furnishing  goods 
which  answer  the  description.  If, 
as  in  the  case  of  a  sale  by  sample, 
the  specific  goods  are  not  ascer- 
tained by  the  agreement,  the  prop- 
erty does  not  pass  until  an  appro- 
priation of  specific  goods  to  the 
contract  is  made  with  the  assent  of 
both  parties.  Bog  Lead  Mining  Co._ 
v.  Montague.  10  C.  B.  (X.  S.)  481; 
Jenner  v.  Smith,  L.  R.  4  C.  P.  270; 
Heilbutt  v.  Hickson.  L.  R.  7  C.  P. 
438;  Merchants'  Xat.  Bank  v.  Bangs, 
102  Mass.  291;  Blackb.  Sales.  122,127; 
Benj.  on  Sales,  §  358.  If  plaintiff 
authorized  the  defendant  to  make 
the  selection,  the  property  immedi- 
ately on  the  selection  vested  in  the 
plaintiff.  Aldridge  v.  Johnson,  7 
E.  &  B.  883.  It  not  appearing  that 
the  plaintiff  gave  such  authority, 
the  goods  at  the  time  of  the  fire 
were  the  property  of  the  defendant 
and  their  destruction  was  his  loss." 
On  other  grounds,  however,  the  court 
held  that  the  plaintiff  could  not  re- 
cover. 

So,  in  Boothby  v.  Plaisted  (1871), 
51  N.  H.  436,  12  Am.  R.  140,  it  was 


603 


•31.] 


LAW    OF    SALE. 


[book   IT. 


g  731.  Buyer's  assent  required  by  implication —  Sales 

by  sample. —  If  the  contract  requiring  the  buyer's  subsequent 
assent  is  express  there  can  ordinarily  be  no  difficulty;  it  is  only 
in  those  cases  in  which  it  is  contended  that  such  assent  is  an 
implied  term  of  the  contract  that  trouble  arises.  The  case  most 
frequently  presented,  perhaps,  is  that  of  a  sale  by  sample,  and 
concerning  this  there  is  some  apparent  conflict  of  authority. 
It  has  been  held  in  England  that  such  a  contract  does  not  imply 
power  in  the  seller  to  make  a  final  appropriation  and  that  the 
subsequent  assent  of  the  buyer  is  required.1     But  the  rule  sus- 


expressly  agreed  that  the  vendee, 
after  the  goods  "  arrived  at  his  store, 
might  examine  them,  and,  if  not  ac- 
cording to  sample,  he  need  not  ac- 
cept the  same.''  The  court  said  that 
this  did  not  differ  from  other  sales 
by  sample  "  except  that  in  this  case 
it  was  agreed  that  the  defendant 
[the  buyer]  should  decide  for  him- 
self whether  or  not  the  goods  were 
according  to  the  sample;  and  he  cer- 
tainly cannot  be  heard  to  object  that 
he  himself  was  made  the  umpire, 
and  has  by  his  own  acts  decided  the 
case  in  favor  of  the  plaintiff." 

i  Jenner  v.  Smith  (1869),  L.  R.  4  C.  P. 
270.  is  the  leading  case  upon  this  sub- 
ject. That  was  an  action  to  recover 
the  price  of  two  pockets  of  hops  as 
goods  sold  and  delivered  and  goods 
bargained  and  sold.  The  parties  met 
at  a  fair,  and  it  was  orally  agreed  that 
defendant  should  purchase  of  the 
plaintiff  two  pockets  of  hops  then  at 
the  fair  and  inspected  by  the  defend- 
ant and  also  two  other  pockets  of 
which  a  sample  was  shown.  After 
the  purchase  had  been  agreed  upon, 
defendant  was  informed  that  the 
latter  were  lying  in  Prid  &  Son's 
warehouse  in  London,  and  he  re- 
quested that  they  be  left  there  until 
he  sent  word  that  he  was  ready  to 
receive  them.   He  took  the  other  two 


pockets  at  the  fair.  The  plaintiff,  a 
day  or  two  afterwards,  sent  defend- 
ant an  invoice  stating  numbers, 
weight  and  price  of  the  four  pockets, 
with  an  intimation  that  the  two  pock- 
ets in  the  warehouse  were  subject  to 
his  order.  The  plaintiff  had  three 
pockets  at  the  warehouse,  and  he  had 
in  the  meantime  gone  to  the  ware- 
house and  directed  the  warehouse- 
man to  put  certain  marks  upon  two 
of  them  to  indicate  that  they  were 
sold  and  were  to  wait  the  orders  of 
the  purchaser.  No  change  was  made 
in  the  books  of  the  warehouseman. 
The  defendant  refused  to  accept 
these  two  pockets,  and  hence  this  ac- 
tion. Plaintiff  was  nonsuited  at  the 
trial  and  this  was  sustained  by  the 
court  of  common  pleas.  Said  Brett,  J. : 
"Here  there  was  no  previous  au- 
thority given  to  the  plaintiff  to  ap- 
propriate; and,  if  not,  what  evidence 
was  there  to  show  that  the  appro- 
priation of  the  two  pockets  in  Prid 
&  Son's  warehouse  was  ever  assented 
to  by  the  defendant?  The  defend- 
ant's assent  might  have  been  given 
in  either  of  two  ways  —  by  himself 
or  by  an  authorized  agent.  By  him- 
self, after  the  receipt  of  the  letter 
containing  the  invoice:  or  by  the 
warehouse  keepers,  if  there  had  been 
any  evidence  of  agency  or  authority 


604 


CH.  IV.]  EXISTING    CHATTELS   NOT   YET   IDENTIFIED. 


[§  T31. 


tained  by  the  weight  of  authority  in  the  United  States  is  that, 
if  the  seller  in  fact  appropriates  goods  which  do  conform  in  all 
respects  to  the  sample,  the  title  thereby  passes  and  the  buyer 
cannot  afterwards  reject  them.  It  is,  of  course,  a  condition 
precedent  to  the  operation  of  this  rule  that  the  goods  shall  so 
conform,  for  the  seller  cannot  bind  the  buyer  to  take  goods  of 
a  kind  he  never  agreed  to  take;  and,  if  the  goods  supplied  do 
not  in  fact  conform  to  the  sample,  the  buyer  may  reject  them; 
but,  subject  to  this  right  of  examination  and  rejection,  the  title 
passes  by  the  appropriation  of  the  seller.1 


in  them  to  accept,  and  assent  by 
them  to  hold  the  hops  for  him.  I 
think  the  defendant's  letter  refusing 
to  accept  the  draft  was  strong,  if  not 
conclusive,  to  show  that  there  had 
been  no  such  assent  by  the  defend- 
ant. And,  as  to  Prid  &  Son,  the  evi- 
dence fails  on  both  points.  They 
never  agreed  to  hold  the  two  pockets 
on  behalf  of  the  purchaser;  and,  if 
they  did,  there  is  no  evidence  of  any 
authority  from  him  that  they  might 
do  so.  Counsel  has  strongly  put  for- 
ward a  point  which  was  not  made  at 
the  trial,  viz.,  that  there  was  evi- 
dence that,  by  agreement  between 
the  parties,  the  purchaser  gave  au- 
thority to  the  seller  to  select  the  two 
pockets  for  him.  If  he  did  so,  he 
gave  up  his  power  to  object  to  the 
weighing  and  to  the  goods  not  cor- 
responding with  the  sample;  for  he 
could  not  give  such  authority  and 
reserve  his  right  so  to  object;  and 
indeed  it  has  not  been  contended 
that  he  gave  up  those  rights.  That 
seems  to  me  to  be  conclusive  to  show 
that  the  defendant  never  gave  the 
plaintiff  authority  to  make  the  choice 
so  as  to  bind  him.  Under  the  cir- 
cumstances, therefore,  it  is  impos- 
sible to  say  that  the  property  passed; 
consequently  the  plaintiff  cannot  re- 


cover as  for .  goods  bargained  and 
sold." 

iln  Boothby  v.  Plaisted  (1871),  51 
N.  H.  436, 12  Am.  R.  140,  there  was  a 
sale  by  sample  coupled  with  an  ex- 
press agreement  that,  alter  the  goods 
arrived  at  his  store,  the  vendee 
"  might  examine  them,  and  if  not  ac- 
cording to  sample  he  need  not  accept 
the  same."  The  buyer  received  and 
used  the  goods,  but  the  court  said: 
"If  the  plaintiffs  [the  sellers]  per- 
formed their  part  of  the  contract 
fully  by  delivering  at  the  time  and 
place  agreed  the  article  which  they 
agreed  to  furnish,  then  it  became  at 
once  the  property  of  the  defendant, 
and  he  would  ordinarily  have  no 
right  to  refuse  to  accept  it." 

In  Wadhams  v.  Balfour  (1898),  32 
Oreg.  313,  51  Pac.  R.  642,  there  was 
a  sale  by  sample  of  a  carload  of 
wheat.  At  the  time  of  the  sale  the 
seller  indorsed  and  delivered  to  the 
buyer  the  bill  of  lading,  which  both 
parties  treated  as  a  constructive  de- 
livery of  the  wheat.  Before  the  car 
reached  its  destination  it  was  de- 
stroyed by  fire,  and  the  action  was 
for  the  price..  The  court  said  that 
the  right  of  inspection  was  a  condi- 
tion of  the  contract,  but  whether 
precedent  or  subsequent   depended 


605 


§  732.] 


LAW    OF    SALE. 


[BOOK    II. 


|  730.  How  buyer's  assent  given  when  required.— 

Where  the  buyer's  assent  is  required,  no  particular  method  of 
giving  it  is  indispensable.  The  fact  of  giving  it  is,  here,  as  in 
former  cases,  the  material  thing.  And,  as  is  said  by  Lord 
Blackburn,  "the  question  of  whether  there  has  been  a  subse- 
quent assent  or  not  is  one  of  fact;  the  other  question  of 
whether  the  selection  by  one  party  merely  showed  an  inten- 
tion in  that  party  to  appropriate  those  goods  to  the  contract, 
or  showed  a  determination  of  a  right  of  election,  is  one  of 
law."1 


in  great  measure  upon  the  contract. 
If  the  title  had  passed  it  was  a  condi- 
tion subsequent.  In  this  case  the 
parties  treated  the  title  as  passing 
by  the  indorsement  and  delivery  of 
the  bill  of  lading.  The  opportunity 
for  examination  and  inspection  had 
been  removed  by  the  destruction  of 
the  property,  but  the  title  having 
passed  the  risk  of  loss  passed  with 
it,  and  the  buyers  must  pay  for  it. 
Boothby  v.  Plaisted,  supra,  was  cited 
with  approval;  and  to  the  point  that 
the  title  passes  by  the  delivery  to 
the  carrier  of  such  goods  as  are  or- 
dered, even  though  the  buyer  may 
have  a  reasonable  time  after  their 
delivery  to  examine  the  goods  and 
to  "  rescind  "  the  contract  if  they  do 
not  conform,  the  court  also  cited: 
Magee  v.  Billingsley,  3  Ala.  679 ;  Mc- 
Carty  v.  Gordon,  16  Kan.  35;  Gill  v. 
Kaufman,  16  Kan.  571;  Brigham  v. 
Hibbard,  28  Oreg.  387,  43  Pac.  R.  383; 
Johnson  v.  Hibbard,  29  Oreg.  184,  44 
Pac.  R.  287,  54  Am.  St.  R.  787. 

The  cmestion  was  also  fully  exam- 
ined in  Kuppenheimer  v.  Wert- 
heimer  (1895),  107  Mich.  77,  64  N.  W. 
R.  952,  61  Am.  St.  R.  317,  and  the 
same  conclusion  reached.  "  If  the 
goods  are  not  up  to  the  sample,"  said 
the  court,  "the  right  to  refuse  them 
exists,  which  is,  in  effect,  a  rescission. 


The  title  passes  upon  delivery  to  the 
carrier,  subject  to  this  right,  of  which 
the  purchaser  may  avail  himself  or 
not."  Rindskopf  v.  De  Ruyter,  39 
Mich.  1,  33  Am.  R.  340,  was  distin- 
guished. 

In  Smith  v.  Edwards  (1892),  156 
Mass.  221,  30  N.  E.  R.  1017,  it  was  also, 
upon  full  consideration,  held  that  on 
a  sale  of  goods  to  be  supplied  in  ac- 
cordance with  a  sample,  an  appro- 
priation of  the  goods  by  the  seller, 
in  full  conformity  to  the  sample, 
passed  the  title  without  a  subsequent 
assent  by  the  buyer. 

In  Colorado  Springs  Live  Stock  Co. 
v.  Godding  (1894),  20  Colo.  249,  38 
Pac.  R.  58,  it  is  said :  "  While  it  has 
been  held  in  some  of  the  cases  that 
the  acceptance  by  the  purchaser  of 
an  article  appropriated  by  the  seller 
according  to  the  terms  of  an  execu- 
tory contract  of  sale  is  necessary  to 
pass  the  title,  the  weight  of  author- 
ity is  that  the  appropriation  by  the 
seller  of  an  article,  when  completed 
in  accordance  with  the  terms  of  the 
contract,  passes  the  title  without  the 
subsequent  assent  of  the  purchaser, 
and  an  action  for  the  agreed  price 
can  be  maintained." 

•  Blackburn  on  Sale,  p.  129,  cited 
supra.  In  Alexander  v.  Gardner 
(1835),  1  Bing.  N.  C.  671,  there  was  a 


606 


CH.  IV.]  EXISTING    CHATTELS    NOT   YET    IDENTIFIED. 


[§  733. 


2.   Of  Appropriation  when  Seller  to  Deliver  (lie  Goods. 

§  733.  How  when  the  vendor  is  to  select  and  deliver  the 
g00ds, —  Where,  by  the  terras  of  the  contract,  the  seller  is  to 
select  and  deliver  the  goods  at  any  particular  place  or  in  any 
particular  manner,  the  goods  ordinarily  remain  his  property 
and  at  his  risk  until  they  are  delivered  in  accordance  with  the 
aoreement;  even  if  he  commits  the  goods  to  a  carrier  for  de- 
livery as  agreed  upon,  the  carrier  is  deemed  to  be  his  agent, 
and  if  the  goods  are  lost  while  in  the  charge  of  the  carrier  the 
loss  must  fall  upon  the  seller.1    The  same  rule  would,  of  course, 


contract  for  a  cargo  of  butter,  f.  o.  b., 
to  be  shipped  in  October.  The  but- 
ter was  not  shipped  until  Novem- 
ber 6th,  but  defendant  waived  the 
delay  and  consented  to  take  the  in- 
voice and  bill  of  lading  which  de- 
scribed the  butter,  the  weights  and 
marks  of  the  casks,  etc.  The  butter 
was  afterwards  lost  by  shipwreck. 
Held,  that  the  appropriation  of  this 
cargo  of  butter  to  the  contract  was 
complete  by  mutual  assent;  that  the 
title  had  passed,  and  the  buyers  must 
stand  the  loss. 

In  Sparkes  v.  Marshall  (1836),  2 
Bing.  N.  C.  761,  a  cargo  of  oats  was 
contracted  for,  to  be  shipped,  etc. 
Some  days  later  the  buyer  was  in- 
formed that  the  shippers  had  en- 
gaged "  room  in  the  schooner  Gibral- 
tar Packet  of  Dartmouth  to  take 
about  six  hundred  barrels  of  black 
oats  on  your  account."  The  buyer  on 
the  next  day  ordered  insurance  "  on 
oats  per  the  Gibraltar  Packet  of 
Dartmouth."  In  an  action  by  the 
buyer  against  the  insurers  it  was 
contended  by  them  that  the  title 
had  not  passed,  but  it  was  held  other- 
wise. Tindal,  C.  J.,  said  that  the 
letter  "  was  an  unequivocal  appro- 
priation of  the  oats  on  board  the 
Gibraltar  Packet,"   and  that   "this 


appropriation  is  assented  to  and 
adopted  by  the  plaintiff,  who,  on  the 
following  day,"  effected  insurance. 
etc. 

i  In  McNeal  v.  Braun  (1891),  53  N. 
J.  L.  617.  23  Atl.  R.  687,  26  Am.  St. 
R.  441,  M.,  who  resided  at  X.,  had  or- 
dered of  B.,  who  was  a  wholesale 
coal  dealer  at  Y.,  a  cargo  of  coal  at 
§4.10  per  ton  delivered  at  X.  B.  char- 
tered a  compartment  vessel,  loaded 
her  with  coal,  took  a  bill  of  lading 
which  promised  a  delivery  to  M.,  and 
sent  the  vessel  on  her  way.  She 
reached  X.  and  tied  up  atM.'s  wharf 
for  delivery  to  M.,  but  before  she 
was  unloaded  one  of  the  compart- 
ments sank,  through  the  negligence 
of  the  carrier,  and  the  coal  was  lost. 
Held,  in  an  action  to  recover  the 
price,  that  B.  must  bear  the  loss. 
Said  the  court:  "The  plaintiff,  in- 
stead of  being  an  agent  to  procure 
transportation,  had  himself  con- 
tracted to  deliver  the  coal,  and  the 
instructions  ignore  the  fact  that 
under  a  contract  of  that  sort  the 
undertaking  to  deliver  is  absolute 
and  unqualified,  and  delivery  of  the 
goods  is  a  condition  precedent  to 
the  right  of  the  vendor  to  sue  for 
the  contract  price.  If  the  goods  be 
lost  or  destroyed  before  delivery  is 


607 


§  733.] 


LAW    OF    SALE. 


[BOOK    II. 


apply  where  the  agreement  is  that  the  seller  shall  deliver  the 
goods  to  a  carrier  at  the  point  of  shipment.1 

Cases  of  this  class  may  rest  also  upon  the  ground,  previously 
considered,  that  the  seller  is  to  do  something  to  the  goods, 


consummated  the  vendor  must  bear 
the  loss.  Under  such  a  contract  the 
carrier  selected  by  the  vendor  is  his 
agent  to  perform  the  contract  to 
deliver,  and  the  vessel  in  which  the 
goods  are  carried  is  pro  hac  viae  the 
vendor's  vessel.  For  the  negligence 
of  the  one  and  the  condition  of  the 
other,  and,  indeed,  for  failure  to 
make  delivery  of  the  coal  according 
to  contract,  for  any  cause  not  due  to 
the  fault  of  the  purchaser,  the  re- 
sponsibility is  upon  the  vendor." 

The  question  whether  the  title  had 
passed  was  not  directly  passed  upon, 
though  the  court  held  that  even  if 
it  had,  still,  by  the  terms  of  the  con- 
tract, delivery  was  a  condition  pre- 
cedent to  the  right  to  recover  the 
price.  The  case  is  most  appropriately 
to  be  classed  among  those  considered 
post,  §  744,  where  the  title  is  to  pass 
at  once,  though  the  goods  are  not  to 
be  paid  for  unless  they  arrive.  Dun- 
lop  v.  Lambert,  6  Clark  &  Fin.  600, 
and  Calcutta  Co.  v.  De  Mattos.  32  L. 
J.  Q.  B.  322,  33  id.  214,  were  cited  and 
relied  upon. 

In  Magruder  v.  Gage,  33  Md.  344,  3 
Am.  R.  177,  it  is  said:  "  If  the  vendor 
undertakes  to  make  the  delivery 
himself  at  a  distant  place,  thus  as- 
suming the  risk  in  the  carriage,  the 
carrier  becomes  the  agent  of  the 
vendor,  and  the  property  will  not 
pass  until  the  delivery  is  actually 
made." 

In  Dunlop  v.  Lambert,  supra,  it  is 
said:  "If  a  particular  contract   be 


proved  between  the  consignor  and 
consignee  —  as  where  a  party  under- 
taking to  consign  undertakes  to  de- 
liver at  a  particular  place, —  the  prop- 
erty, till  it  reaches  that  place  and  is 
delivered  according  to  the  terms  of 
the  contract,  is  at  the  risk  of  the 
consignor." 

In  Ludlow  v.  Bowne  (1806),  1  Johns. 
(N.  Y.)  1,  3  Am.  Dec.  277,  it  is  said 
that  he  has  the  property  upon  whom 
the  loss  in  transportation  would  fall. 
"And  Sir  William  Scott  observes 
that  this  is  the  true  criterion  of 
property.  He  is  to  be  deemed  the 
proprietor  on  whom  the  loss  would 
fall  in  case  of  accident.  2  Rob.  Adm. 
135.  This  is  certainly  a  just  and  ra- 
tional criterion  between  the  vendor 
and  vendee;  the  former  is  presumed 
to  get  a  compensation  for  the  risk, 
and  the  loss  is  therefore  to  be  borne 
by  him." 

See  also  Neimeyer  Lumber  Co.  v. 
Burlington  R.  Co.,  54  Neb.  321,  74  N. 
W.  R.  670,  40  L.  R.  A.  534;  Bloyd  v. 
Pollock,  27  W.  Va.  75;  Devine  v.  Ed- 
wards, 101  111.  138;  Taylor  v.  Cole 
(1873),  111  Mass.  363;  Suit  v.  Wood- 
hall,  113  Mass.  391;  Weil  v.  Golden, 
141  Mass.  364,  6  N.  E.  R.  229:  Snea- 
then  v.  Grubbs  (1878),  88  Pa.  St.  147; 
Braddock  Glass  Co.  v.  Irwin  (1893), 
153  Pa.  St.  440,  25  Atl.  R.  490;  Mc- 
Laughlin v.  Marston  (1891),  78  Wis. 
670,  47  N.  W.  R.  1058. 

F.  0.  B. —  As  to  the  effect  of  a  con- 
tract to  deliver  goods  "f.  o.  b."  at  a 
certain  place,  it  is  said  by  Norval,  J., 


'See  Odell  v.  Boston  &  M  R.  Co.  (1871),  109  Mass.  50;  Spencer  v.  Hale 
(1858),  30  Vt.  314. 


608 


OH.  IV.]  EXISTING    CHATTELS   NOT   YET   IDENTIFIED.  [§   734. 

i.  e.,  deliver  them  at  a  given  place,  before  they  are  in  the  con- 
dition in  which,  by  the  terms  of  the  agreement,  the  purchaser 
is  bound  to  receive  them. 

3.  Of  Appropriation  where  the  Buyer  is  to  Come  for  the  Goods. 

§  1M.  How  when  the  purchaser  is  to  come  and  get  the 
goods. —  Where  goods  were  ordered  of  a  dealer,  but  the  con- 
tract did  not  determine  the  place  of  delivery,  it  was  said: 1  "If 
no  place  be  designated  by  the  contract,  the  general  rule  is  that 
the  articles  sold  are  to  be  delivered  where  they  are  at  the  time 
of  the  sale.  The  store  of  the  merchant,  the  shop  of  the  manu- 
facturer, and  the  farm  of  the  farmer,  at  which  the  commodities 
sold  are  deposited  or  kept,  must  be  the  place  of  delivery  when 
the  contract  is  silent  upon  the  subject;  at  least,  when  there  are 
no  circumstances  showing  that  a  different  place  was  intended. 
This  is  a  rule  of  construction  predicated  upon  the  presumed  in- 
tention of  the  parties  when  making  the  contract.2  This  rule  is 
not  changed  by  the  fact  that  plaintiffs  did  not  have  the  goods 
on  hand  at  their  place  of  business  at  the  time  of  the  sale,  but 
had  to  procure  them  elsewhere  in  order  to  fulfill  their  contract. 
Potentially  and  prospectively  the  goods  were  as  if  then  situate 
in  their  store." 

The  question  of  appropriation  in  these  cases  must  therefore 
rest  upon  the  general  principles  already  considered,3  i.  e.,  that 

in  Neimeyer  Lumber  Co.  v.  Burling-  f.  o.  b.  at  place  of  destination,  post, 

ton  R.  Co.,  supra:  "The  initial  let-  §741,  note;  also  post,  g§  795-797. 

ters  '  f.  o.  b.'   in  contracts  of  sale,  l  In  Janney   v.  Sleeper  (1883),  30 

when  the   property  is  to  be  trans-  Minn.  473,  16  N.  W.  R.  365. 

ported,  mean   'free    on   board'  the  2The  court  cited  Benj.  on  Sales, 

cars  at  a  designated  place,  whether  §§  1018, 1022;  2  Chitty  on  Cont.  1201, 

that  be  the  initial  point  of  shipment  1202;  2  Kent,  505;  Middlesex  Co.  v. 

or  place  of  final  destination.    They  Osgood,  4  Gray  (Mass.),  447;  Smith  v. 

imply  that  the  buyer  shall  be  free  Gillett,  50  111.  290;  Hamilton  v.  Cal- 

from  all  the  expenses  and  risks  at-  houn,  2  Watts  (Pa.),  139;  Lobdell  v. 

tending  the  delivery  of  the  property  Hopkins,  5  Cow.  (N.  Y.)  516;  Rice  v. 

at  the  point  named  in  the  contract  Churchill,  2  Denio  (N.  Y.),  145;  Wil- 

for  such  purpose."    See,  further,  as  mouth  v.  Patton,  2  Bibb  (Ky.),  280; 

to  the  effect  of  a  contract  to  deliver  Sousely  v.  Burns,  10  Bush  (Ky.),  87. 

3  See  ante,  §  724  et  seq. 
39  609 


§§  735,  736.]  LAW  OF  SALE.  [book  II. 

there  is  a  sufficient  appropriation  when  the  party  who,  by  the 
contract,  has  authority  to  make  it,  has  conclusively  and  finally 
designated  the  goods  which  are  to  be  sold.1 

§  735.  Effect  of  putting  goods  into  buyer's  convey- 
ance.— Putting  the  goods  into  the  buyer's  receptacles,2  as  has 
been  seen,  or  into  his  ship  or  other  conveyance,3  would  ordi- 
narily be  such  an  appropriation;  but  even  here, as  will  be  seen, 
this  result  may  be  defeated  by  acts  indicative  of  a  contrary 
intent,  as  where,  though  the  goods  are  put  on  board  a  vessel 
sent  by  the  buyer,  the  bill  of  lading  is  taken  to  the  seller's  order 
for  the  purpose  of  reserving  control  over  them.4 

4.  Of  Appropriation  where  Seller  is  to  Send  Goods  oy  Carrier. 

§  736.  How  when  the  seller  is  to  send  the  goods  by  carrier. 

The  most  common  form  in  which  the  question  arises  is  that  in 
which  goods  are  ordered  to  be  transmitted  to  the  purchaser  by 
carrier.  In  such  cases  there  may  be  a  carrier  specially  desig- 
nated, or  the  contract  may  provide  for  shipment  by  some  car- 
rier without  specifying  any,  or  it  may  be  entirely  silent  upon 
the  subject.  As  to  such  cases  it  is  said : 5  "  The  question  as  to 
what  acts  are  necessary  to  be  performed  by  a  vendor  under  an 
executory  agreement  for  the  sale  of  unspecified  goods  in  order 
to  transfer  the  title  to  the  vendee  and  subject  him  to  the  risk 
of  the  carriage,  depends  entirely  upon  the  agreement,  either 
express  or  implied,  between  the  parties.  If  the  vendor  under- 
takes to  make  the  delivery  himself  at  a  distant  place,  thus  as- 
suming the  risk  in  the  carriage,  the  carrier  becomes  the  agent 

i  See  Andrews  v.  Cheney  (1882),  62  091 ;   Moakes  v.   Nicolson  (1865),  19 

N.  H.  404.  C.  B.  (N.  S.)  290;  Schotsraans  v.  Rail- 

2  Ante,  §  727;  Langton  v.  Higgins  way  Co.  (1867),  2  Ch.  App.  332;  Guram 
(1859),  4  H.  &  N.  402;  Aldridge  v.  v.  Tyrie  (1864),  33  L.J.  Q.  B.  97,  34  id. 
Johnson  (1857),  7  El.  &  Bl.  885.  124;   Rochester  Oil   Co.   v.  Hughey 

3  See    Turner    v.    Liverpool  Dock  (1867),  56  Pa.  St.  322. 
Trustees  (1851),  6  Ex.  543;  EUershaw        *  See  post,  §  774. 

v.  Magniao  (1843),  6  Ex.  570;  Brandt        5  In  Magruder  v.  Gage  (1870),  33  Md. 
v.  Bowlby  (1831),  2  B.  &  Ad.  932;     344,  3  Am.  R.  177. 
Van  Casteel  v.  Booker  (1848),  2  Ex. 

610 


CH.   IV.]  EXISTING    CHATTELS    NOT    YET    IDENTIFIED. 


[§  T36. 


of  the  vendor,  and  the  property  will  not  pass  until  the  delivery 
is  actually  made.1  On  the  other  hand,  if  the  goods  are  de- 
livered to  a  carrier  special^  designated  by  the  purchaser,  he 
becomes  the  agent  of  the  latter,  and  the  title  to  the  property, 
as  a  general  rule,  will  pass  the  moment  the  goods  are  dis- 
patched.2 Should  the  contract  of  purchase  be  silent  as  to  the 
person  or  mode  by  which  the  goods  are  to  be  sent,  a  delivery 
by  the  vendor  to  a  common  carrier  in  the  usual  and  ordinary 
course   of  business  transfers  the  property  to  the   vendee." 3 


1  See  as  to  this,  ante,  §  733. 

2 "  In  general,  a  delivery  of  goods  to 
a  common  carrier,  and,  a  fortiori, 
to  one  specially  designated  by  the 
buyer,  is  a  delivery  to  the  buyer." 
Hobart  v.  Littlefield  (18S1),  13  R.  I. 
341.  To  like  effect:  Stanton  v.  Eager 
(1835),  16  Pick.  (Mass.)  467;  Wing  v. 
Clark  (1844),  24  Me.  366;  State  v. 
Peters  (1897),  91  Me.  31.  39  Atl.  R. 
342;  Scharff  v.  Meyer  (1896),  133  Mo. 
428,  34  S.  W.  R.  858,  54  Am.  St.  R.  672; 
State  v.  Wingfield  (1893),  115  Mo.  428, 
22  S.  W.  R.  363,  37  Am.  St.  R.  406; 
Dyer  v.  Great  Northern  Ry.  Co. 
(1892),  51  Minn.  345,  53  N.  "W.  R.  714, 
38  Am.  St.  R.  506;  Wilcox  Silver  Plate 
Co.  v.  Greeu  (1878),  72  N.  Y.  17:  Wade 
v.  Hamilton  (1860),  30  Ga.  450.  De- 
livery of  the  goods  to  the  servant  or 
agent  of  the  purchaser  is  equivalent 
to  delivery  to  the  purchaser.  Bonner 
v.  Marsh  (1848),  10  Sm.  &  M.  (Miss.) 
376.  48  Am.  Dec.  754. 

3  When  the  goods  are  left  by  the 
seller  with  a  common  carrier  to  be 
delivered  to  the  purchaser  without 
any  qualification  or  restriction,  the 
title  thereupon  and  thereby  passes  to 
the  purchaser,  and  the  seller  cannot 
afterwards  stop  them  or  change  their 
destination,  unless  under  such  cir- 
cumstances as  justify  a  seller  in 
exercising  the  right  of  stoppage  in 
transitu.   Philadelphia,  etc.  R.  Co.  v. 


Wireman  (1879),  88  Pa.  St.  264; 
Schmertz  v.  Dwyer  (1866),  53  Pa.  St. 
335;  Johnson  v.  Stoddard  (1868),  100 
Mass.  306;  Merchants'  Nat.  Bank  v. 
Bangs  (1869),  102  Mass.  291;  Prince  v. 
Boston  &  L.  R.  Co.  (1869),  101  Mass. 
542,  100  Am.  Dec.  129;  Krulder  v. 
Ellison  (1871),  47  N.  Y.  36,  7  Am.  R. 
402;  Dutton  v.  Solomonson  (1803),  3 
B.  &  P.  582;  Cork  Distilleries  Co.  v. 
Railway  Co.,  L.  R.  7  H.  L.  269;  John- 
son v.  Railway  Co.  (1878),  3  C.  P.  D. 
499;  Fragano  v.  Long  (1825),  4  B.  &  C. 
219;  Bryans  v.  Nix  (1839),  4  M.  &  W. 
775;  Bailey  v.  Railroad  Co.  (1872),  49 
N.  Y.  70;  Torrey  v.  Corliss  (1851),  33 
Me.  333;  Neimeyer  Lumber  Co.  v. 
Burlington  R.  Co.  (1898),  54  Neb.  321, 
74  X.  W.  R.  670,  40  L.  R.  A.  534;  Kess- 
ler  v.  Smith  (1890),  42  Minn.  494,  44 
N.  W.  R.  794;  Leggett  &  Meyer  To- 
bacco Co.  v.  Collier  (1893),  89  Iowa, 
144,  56  N.  W.  R,  417,  and  many  other 
cases  cited  in  these  cases.  This  will 
be  true  even  though  the  goods  have 
yet  to  be  weighed  at  the  point  of 
destination  in  order  to  ascertain  the 
price  (Odell  v.  Boston  &  Me.  R.  Co. 
(1871),  109  Mass.  50),  or  though  the 
consignor  guarantees  the  payment 
of  the  freight  and  makes  a  special 
agreement  as  to  the  carriage.  Staf- 
ford v.  Walter  (1873),  67  111.  83. 
Where,  by  the  terms  of  the  agree- 
ment, the  goods  are  to  be  placed  on  a 


611 


§§  737-739.]  law  of  sale.  [book  ii. 

Where  no  carrier  is  specified,  and  a  choice  is  open  to  the  ship- 
per, the  selection  of  any  one,  in  good  faith  and  in  the  usual 
course  of  business,  will  suffice. 

|  737.  .  In  a  later  case1  the  rule  was  very  carefully 

stated  thus:  "When  goods  ordered  and  contracted  for  are  not 
directly  delivered  to  the  purchaser,  but  are  to  be  sent  to  him 
by  the  vendor,  and  the  vendor  delivers  them  to  the  carrier,  to 
be  transported  in  the  mode  agreed  on  by  the  parties  or  directed 
by  the  purchaser,  or,  when  no  agreement  is  made  or  direction 
given,  to  be  transported  in  the  usual  mode;  or  when  the  pur- 
chaser, being  informed  of  the  mode  of  transportation,  assents 
to  it;  or  when  there  have  been  previous  sales  of  other  goods,  to 
the  transportation  of  which  in  a  similar  manner  the  purchaser 
has  not  objected,— the  goods  when  delivered  to  the  carrier  are 
at  the  risk  of  the  purchaser,  and  the  property  is  deemed  to  be 
vested  in  him,  subject  to  the  vendor's  right  of  stoppage  in 
transitu." 

§  738.  .  Such  a  delivery,  however,  will  not  transfer  the 

title  if  transmission  by  a  carrier  were  neither  expressly  or  im- 
pliedly agreed  upon,  nor  justified  by  the  previous  conduct  of 
the  parties  or  the  usage  of  trade.2 

§  739.  Effect  of  such  delivery  to  carrier.—  The  effect 

of  the  delivery  to  the  carrier  under  proper  circumstances  is 
thus  not  only  to  transfer  the  title,  but  also  to  fix  ordinarily  the 

car  at  the  seller's  place  of  business,  Am.  Dec.  636  (citing  Coats  v.  Chap- 

andthe  buyer  is  to  accept  the  seller's  lin,  3  Ad.  &  El.  (N.  S.)  483,  to  same 

weight  and  grade,  the  title  passes  effect);  Hague  v.  Porter  (1842),  3  Hill 

when  the  goods  are    so  deposited.  (N.  Y.),  141;  Everett  v.  Parks  (1872), 

McKee  v.  Bainter,  52  Neb.  604,  72  N.  62  Barb.  (N.  Y.)  9.     But  the  vendee's 

W.  R.  1044.  consent  that  the  goods  shall  be  sent 

JWheelhouse    v.   Parr  (1886),    141  by  carrier  may  be  implied  from  the 

Mass.  593,  6  N.  E.  R.  787.  usage   of  trade.    Hague  v.   Porter, 

2  If  goods  ordered  are  delivered  to  supra;  Leggett  &  Meyer  Tobacco  Co. 

a  carrier  without  any  express  or  im-  v.  Collier  (1893),  89  Iowa,  144, 56  N.  W. 

plied  direction  so  to  send  them,  then  R.  417;  Watkins  v.  Paine  (1876),  57 

such  delivery  will  not  operate  to  pass  Ga.  50:  Star  Glass  Co.   v.  Longley 

the  title  and  the  risk  to  the  vendee.  (1880),  64  Ga.  576. 
Loyd  v.  Wight  (1856),  20  Ga.  574,  65 

612 


CH.  IT.]  EXISTING    CHATTELS    NOT    YET    IDENTIFIED. 


[§  739. 


time  smdj>7ace  at  which  the  title  passes.1  With  the  title  also 
go  the  risk  and  the  liability,  and  the  seller  may  recover  the 
price,  though  the  goods  never  arrive,  or,  without  his  fault,  are 
injured  on  the  way.2  The  goods,  moreover,  having  become  the 
property  of  the  buyer  are  subject  to  the  same  rights  and  liabil- 
ities as  his  other  goods,  and  are  taxable  or  attachable,  as  well 
as  transferable,  as  his  own.  The  seller,  further,  thus  performs 
on  his  part,  and  the  order  for  the  goods  is  no  longer  open  to 
withdrawal  or  revocation  by  the  purchaser.3 


iTIius,  in  Sarbecker  v.  State  (1886), 
65  Wis.  171,  56  Am.  R  624,  it  is  said: 
"  We  are  constrained  to  hold  that 
where  the  contract  is  silent  on  the 
subject,  and  there  is  nothing  in  the 
transaction  indicating  a  different  in- 
tention, and  a  manufacturer  in  one 
city  receives  through  his  agent  re- 
siding in  another  an  order  for  goods 
from  a  customer  there,  and  fills  the 
order  by  delivering  the  goods  to  a 
common  carrier  at  the  place  of  man- 
ufacture, consigned  to  such  customer 
at  his  place  of  residence,  or  to  such 
agent  for  him,  the  sale  is  complete 
and  the  title  passes  at  the  place  of 
shipment,  even  though  the  customer 
on  receiving  the  goods  at  his  place  of 
residence  pays  to  such  agent  there 
the  purchase  price.  .  .  .  The  same 
princi  pie  has  frequently  been  applied 
in  the  sale  of  liquors  to  a  purchaser 
residing  in  a  place  where  all  such 
sales, or  all  such  sales  without  license, 
were  prohibited.  Garbracht  v.  Com., 
96-  Pa.  St.  449,  42  Am.  R  550;  Finch 
v.  Mansfield.  97  Mass.  89;  Abberger 
v.  Marrin,  102  Mass.  70;  Brockway  v. 
Maloney.  102  Mass.  308;  Dolan  v. 
Oreen,  110  Mass.  322;  Frank  v.  Hoey, 
128  Mass.  263;  Hill  v.  Spear,  50  N.  H. 
253,  9  Am.  R  205;  Tegler  v.  Shipman, 
33  Iowa,  194,  11  Am.  R  118;  Boothby 
v.  Piaisted,  51  N.  H.  436,  12  Am.  R. 
140;  Shuenfeldt  v.  Junkermann,  20 
Fed.  R.  357."  See  also  State  v.  Wing- 


field  (1893),  115  Mo.  428,  22  S.  W.  R 
363,  37  Am.  St,  R  406;  Com.  v.  Flem- 
ing (1889),  130  Pa.  St.  138,  18  Atl.  R. 
622, 17  Am.  St,  R.  763;  State  v.  O'Neil, 
58  Vt.  140,  56  Am.  R  557;  State  v. 
Carl,  43  Ark.  353, 51  Am.  R  565;  State 
v.  Peters,  91  Me.  31,  39  Atl.  R  342. 
See  also  further  in  chapter  on  Illegal 
Sales,  post,  §§1125  et  seq. 

2  If  goods  are  properly  delivered  to 
the  carrier,  the  risk  of  loss,  injury 
or  depreciation  falls  from  that  time 
upon  the  purchaser.  Diversy  v.  Kel- 
logg (1867),  44  111.  114,  92  Am.  Dec. 
154;  Whiting  v.  Farrand  (1814),  1 
Conn.  60;  Ranney  v.  Higby  (1855),  4 
Wis.  154,  5  Wis.  62;  Janney  v.  Sleeper 
(1883),  30  Minn.  473;  Magruder  v.  Gage 
(1870),  33  Md.  344,  3  Am.  R  177;  Bur- 
ton v.  Baird  (1884),  44  Ark.  556;  Mo- 
bile Fruit  Co.  v.  McGuire  (1900),  — 
Minn.  — ,  83  N.  W.  R  833;  Lord  v. 
Edwards,  148  Mass.  476,  20  N.  E.  R. 
16,  2  L.  R.  A.  519;  Mee  v.  McNider,  109 
N.  Y.  500,  17  N.  E.  R  424.  The  fact 
that  the  seller  has  a  lien  upon  them 
for  the  price  (see  post,  the  Sellers 
Lien),  or  has  reserved  the  jus  dispo- 
nendi  (see  p>ost,  ch.  VI),  will  not  nec- 
essarily operate  to  prevent  the  risk 
from  passing  to  the  buyer  upon  the 
shipment.  Hobart  v.  Littlefield  (1881), 
13  R.  L  341,  and  other  cases  referred 
to  in  the  note  to  the  following  sec- 
tion. 

3  Leggett  &  Meyer  Tobacco  Co.  v. 


613 


§  HO.] 


LAW    OF    SALE. 


[BOOK    II. 


§  740. Intention  governs. — The  delivery  to  the  carrier 

to  pass  the  title  must  be  unconditional  and  made  with  the  in- 
tention that  the  title  shall  pass  thereby.1  Of  this  intention, 
where  the  facts  are  in  dispute,  the  jury  is  to  judge.  Consign- 
ing the  goods  without  restriction  to  the  purchaser,  or  assigning 
and  transmitting  to  him  the  bill  of  lading,  are  strong  evidences 
of  an  intention  to  pass  the  title,  and  cannot  be  controlled  by 
secret  determinations  to  the  contrary.2     And  so  though  the 


Collier  (1893),  89  Iowa,  144,  56  N.  W. 
R.  417. 

i  Godts  v.  Rose  (1855),  17  Cora.  B. 
229. 

2  In  Wigton  v.  Bowley  (1881),  130 
Mass.  252,  it  is  said:  "In  the  sale  of 
specific  chattels  an  unconditional 
delivery  to  the  buyer  or  his  agent, 
or  to  a  common  carrier  consigned  to 
him,  whether  a  bill  of  lading  is  taken 
or  not,  is  sufficient  to  pass  the  title, 
if  there  is  nothing  to  conti'ol  the 
effect  of  it.  If  the  bill  of  lading  or 
written  evidence  of  the  delivery  to  a 
carrier  be  taken  in  the  name  of  the 
consignee,  or  be  transferred  to  him 
by  indorsement,  the  strongest  proof 
is  afforded  of  the  intention  to  trans- 
fer the  property  to  the  vendee.  Mer- 
chants' National  Bank  v.  Bangs,  102 
Mass.  291.  If  the  vendor  intends  to 
retain  the  right  to  dispose  of  the 
goods  while  they  are  in  course  of 
transportation,  he  must  manifest  that 
intention  at  the  time  of  their  deliv- 
ery to  the  carrier.  It  is  not  the  secret 
purpose,  but  the  intention  as  dis- 
closed by  the  vendor's  acts  and  dec- 
ollations at  the  time,  which  governs. 
Foster  v.  Ropes,  111  Mass.  10;  Upton 
v.  Sturbridge  Mills,  111  Mass.  446. 
Where  there  is  conflicting  evidence 
as  to  intention  the  question  is  for 
the  jury.  It  cannot  be  disposed  of 
as  matter  of  law  unless  the  evidence 
will  justify  a  finding  but  one  way. 


National  Bank  of  Cairo  v.  Crocker, 
111  Mass.  163;  National  Bank  of  Chi- 
cago v.  Bailey,  115  Mass.  228;  Alder- 
man v. Eastern  Railroad  Co.,  115  Mass. 
233."  In  Merchants'  National  Bank 
v.  Bangs  (1869),  102  Mass.  291  (supra), 
it  is  said :  "  In  all  completed  contracts 
of  sale  property  in  the  goods  sold 
passes  to  the  buyer,  although  they 
may  not  have  come  to  his  actual 
possession.  An  unconditional  sale  of 
specific  chattels  passes  the  title  at 
once,  and  the  buyer  takes  the  risk 
of  loss  and  has  the  right  to  immedi- 
ate possession.  When  anything  re- 
mains to  be  done  in  the  way  of 
specifically  appropriating  the  goods 
sold  to  the  contract,  the  agreement 
is  executory  and  the  property  does 
not  pass.  When,  from  the  nature 
of  the  agreement,  the  vendor  is  to 
make  the  appropriation,  then,  as  soon 
as  any  act  is  done  by  him  identify- 
ing the  property  and  it  is  set  apart 
with  the  intention  unconditionally 
to  apply  it  in  fulfillment  of  the  con- 
tract, the  title  vests  and  the  sale  is 
complete.  Thus  the  delivery  to  the 
buyer  or  his  agent,  or  to  a  common 
carrier  consigned  to  him,  whether  a 
bill  of  lading  is  taken  or  not,  if  there 
is  nothing  in  the  circumstances  to 
control  the  effect  of  the  transaction, 
will  be  sufficient.  If  the  bill  of  lad- 
ing or  other  written  evidence  of  the 
delivery  to  the  carrier  be  taken  in 


614 


CH.  IV.]  EXISTING    CHATTELS    NOT   TET    IDENTIFIED. 


[§  740. 


goods  are,  by  the  terms  of  the  contract,  to  be  paid  for  by  note 


the  name  of  the  consignee,  or  be 
transferred  to  him  by  indorsement, 
the  strongest  proof  is  afforded  of  the 
intention  to  transfer  an  absolute 
title  to  the  vendee.  But  the  vendor 
may  retain  his  hold  upon  the  goods 
to  secure  payment  of  the  price,  al- 
though he  puts  them  in  course  of 
transportation  to  the  place  of  desti- 
nation by  delivery  to  a  carrier.  The 
appropriation  which  he  then  makes 
is  said  to  be  provisional  or  condi- 
tional. He  may  take  the  bill  of  lad- 
ing or  carrier "s  receipt  in  his  own  or 
some  agent's  name,  to  be  transferred 
on  payment  of  the  price  by  his  own 
or  his  agent's  indorsement  to  the 
purchaser,  and  in  all  cases  when  he 
manifests  an  intention  to  retain  this 
jus  disponendi  the  property  will  not 
pass  to  the  vendee.  Practically  the 
difficulty  is  to  ascertain,  when  the 
evidence  is  meagre  or  equivocal,  what 
the  real  intention  of  the  parties  was 
at  the  time.  It  is  properly  a  ques- 
tion of  fact  for  the  jury,  under  proper 
instructions,  and  must  be  submitted 
to  them  unless  it  is  plain  as  matter 
of  law  that  the  evidence  will  justify 
a  finding  but  one  way.  Allen  v. 
Williams,  12  Pick.  (Mass.)  297;  Stan- 
ton v.  Eager,  16  id.  467;  Stevens  v. 
Boston  &  Wor.  R.  Co.,  8  Gray  (Mass.), 
262;  Coggill  v.  Hartford  &  N.  H.  R. 
Co.,  8  id.  545;  Moakes  v.  Nicolson,  19 
C.  B.  (N.  S. )  290;  Godts  v.  Rose,  17  C.  B. 
229;  Tregelles  v.  Sewell,  7  H.  &  N. 
574" 

In  Wigton  v.  Bowley,  supra,  A 
ordered  a  car-load  of  flour  of  B,  at  an 
agreed  price  f.  o.  b.,  and  authorized 
him  to  draw  for  the  price  at  ten 
days'  sight.  B  delivered  the  flour  to 
a  carrier,  taking  a  receipt  in  which 
A  was  named  as  consignee,  and  sent 


it,  attached  to  a  draft,  to  a  bank,  with 
directions  to  deliver  the  receipt  on 
acceptance  of  the  draft.  The  draft 
was  not  accepted,  and  it  and  the  re- 
ceipt were  returned  to  B.  A  sold  the 
flour  to  C,  who  bought  in  good  faith 
and  obtained  possession  of  it  from 
the  carrier.  Held,  That  these  facts 
justified  a  finding  that  the  title  to 
the  flour  passed  to  A  upon  delivery 
to  the  carrier  and  that  B  could  not 
recover  it  from  C. 

In  Browne  v.  Hare  (1858),  3  H.  &  N. 
484,  4  H.  &  N.  822,  defendant  ordered 
of  plaintiffs,  through  their  broker,  a 
quantity  of  oil,  to  be  shipped  f.  o.  b. 
Plaintiffs  shipped  the  oil,  and  wrote 
their  broker  to  so  advise  defendant, 
which  he  did.  The  bdl  of  lading  was 
taken  to  plaintiffs'  order  or  assigns. 
They  indorsed  the  bill  of  lading  to 
defendant  and  sent  it  with  invoice 
to  the  broker.  He  sent  these  papers 
to  defendant.  The  ship  was  actually 
lost  before  the  papers  were  received 
by  the  broker,  but  defendant  did  not 
learn  of  it  until  two  hours  after  he 
had  received  the  bill  of  lading  from 
the  broker,  when  he  at  once  returned 
it.  Held,  that  the  title  had  passed. 
Said  Erie,  J. :  "  The  contract  was  for 
the  purchase  of  unascertained  goods, 
and  the  question  has  been,  when  the 
property  passed.  For  the  answer  the 
contract  must  be  resorted  to,  and 
under  that  we  think  the  property 
passed  when  the  goods  were  placed 
free  on  board  in  performance  of  the 
contract.  In  this  class  of  contracts 
the  property  may  depend,  according 
to  the  contract,  either  on  mutual 
consent  Of  both  parties,  or  on  the 
act  of  the  vendor  communicated  to 
the  purchaser,  or  on  the  act  of  the 
vendor  alone.    If  the  bill  of  lading 


615 


§  740.] 


LAW    OF    SALE. 


[BOOK    II. 


or  in  cash  on  arrival,1  or  though  the  seller  takes  a  bill  of  lading 
in  his  own  name  and  retains  it,  the  title  may  still  pass  upon  the 


had  made  the  goods  to  be  delivered 
'  to  the  order  of  the  consignee,'  the 
passing  of  the  property  would  be 
clear.  The  bill  of  lading  made  them 
•to  be  delivered  to  the  order  of  the 
consignor,'  and  he  indorsed  it  to  the 
order  of  the  consignee,  and  sent  it  to 
his  agent  for  the  consignee.  Thus, 
the  real  question  has  been  on  the  in- 
tention with  which  the  bill  of  lading 
was  taken  in  this  form,  whether  the 
consignor  shipped  the  goods  in  per- 
formance of  his  contract  to  place 
them  free  on  board,  or  for  the  pur- 
pose of  retaining  control  over  them 
and  continuing  owner  contrary  to 
the  contract.  The  question  was  one 
of  fact,  and  must  be  taken  to  have 
been  disposed  of  at  the  trial;  the 
only  question  before  the  court  below 
or  before  us  being  whether  the  mode 
of  taking  the  bill  of  lading  neces- 
sarily prevented  the  property  from 
passing.  In  our  opinion  it  did  not, 
under  the  circumstances." 

1  Thus,  in  Farmers'  Phosphate  Co. 
v.  Gill  (1888),  69  Md.  537,  16  Atl.  R. 
214,  1  L.  R.  A.  767,  9  Am.  St.  R.  443, 
it  is  said:  '•  We  think  the  law  is  well 
settled  that  where  a  buyer  purchases 
or  orders  a  specific  quantity  of  goods 
to  be  shipped  to  him  from  a  distant 
place,  and  the  seller  segregates  and 
appropriates  to  the  contract  the 
specified  quantity  by  delivering  them 
to  a  vessel  designated  by  the  buyer, 
or,  in  the  absence  of  such  designation, 
to  a  common  carrier,  the  mere  fact 
that  the  contract  contains  a  stipula- 
tion that  they  are  to  be  paid  for  by 
note  or  in  cash  on  arrival  does  not 
prevent  the  title  from  passing  or 
make  either  payment  or  arrival  a 
condition     precedent    thereto.      In 


such  case  the  goods  become  the 
property  of  the  vendee,  and  are  at 
his  risk  from  the  time  they  are  put 
on  board  the  vessel,"  citing  Magruder 
v.  Gage,  33  Md.  344,  3  Am.  R.  177 
Appleman  v.  Michael,  43  Md.  2G9 
Dutton  v.  Solomonson,  3  Bos.  &  Pul 
582;  Fragano  v.  Long,  4  B.  &  C.  219 
Alexander  v.  Gardner,  1  Bing.  N.  G 
671. 

See  also  Sarbecker  v.  State  (1886), 
65  Wis.  171,  56  Am.  R.  624,  where  it 
is  said  that  the  title  will  pass  on  de- 
livery to  the  carrier,  even  though  the 
purchaser  on  receiving  the  goods  at 
his  place  of  residence  pays  the  pur- 
chase price  there  to  the  seller's  agent. 
To  like  effect:  State  v.  Wingfield 
(1893),  115  Mo.  428,  22  S.  W.  R.  363, 
37  Am.  St.  R.  406,  citing  State  v. 
Hughes,  22  W.  Va.  743. 

C.  0.  D. —  As  to  the  effect  where 
goods  are  sent  G  O.  D.,  the  authori- 
ties are  in  conflict. 

In  State  v.  Intoxicating  Liquors 
(1882),  73  Me.  278,  where  liquors  had 
been  ordered  in  Maine  from  a  firm  in 
Boston  to  be  sent  by  express  G  O.  D., 
and  they  were  so  sent,  the  court  held 
that  the  title  passed  on  the  delivery 
to  the  carrier  in  Boston.  The  same 
rule  was  adhei-ed  to  in  a  case  of  the 
sale  of  "  butterine."  State  v.  Peters 
(1897),  91  Me.  31,  39  Atl.  R.  342. 

In  Com.  v.  Fleming  (1889),  ICO  Pa. 
St.  138,  18  Atl.  R.  622,  17  Am.  St,  R. 
763,  5  L.  R.  A.  470,  where  the  question 
was  as  to  the  place  of  sale  of  in- 
toxicating liquors  shipped  G  O.  D. 
on  order  from  one  county  to  another, 
it  was  held  that  the  title  passed  upon 
delivery  to  the  carrier,  and  that  the 
only  effect  of  the  terms  G  G.  D.  was 
to  make  the  carrier  the  agent  of  the 


616 


CH".  IV.]  EXISTING    CHATTELS    NOT   YET    IDENTIFIED. 


[§  T40. 


delivery  to  the  carrier  if  such  were  the  intention.1    Notice  of 
the  shipment  is  not  necessary  unless  stipulated  for.2 


seller  to  collect  the  price.  Three 
judges  dissented.  State  v.  Carl  (1884), 
43  Ark.  353,  51  Am.  R.  565;  Pilgreen 
v.  State  (1882),  71  Ala.  368;  Brech- 
wald  v.  People  (1886),  21  111.  App.  213, 
are  similar.  Norfolk  Southern  R.  Co. 
v.  Barnes  (1889),  104  N.  C.  25,  and 
Crook  v.  Cowan  (1870),  64  N.  C.  743, 
are  to  same  effect. 

On  the  other  hand,  in  State  v. 
O'Neil  (1885),  58  Vt,  140,  56  Am.  R. 
557  (see  also  O'Neil  v.  Vermont,  144 
U.  S.  323,  where  the  question  is  dis- 
cussed, but  writ  of  error  dismissed 
for  want  of  jurisdiction);  United 
States  v.  Shriver  (1885).  23  Fed.  R.  134 
(S.  C  siib  nom.  People  v.  Shriver,  31 
Alb.  L.  Jour.  163):  State  v.  Wingfield 
(1893),  115  Mo.  428,  22  S.  W.  R.  363, 
37  Am.  St.  R.  406,  where  intoxicating 
liquors  were  sent  C.  O.  D.,  it  was  held 
that  the  title  did  not  pass  until  pay- 
ment and  delivery.  So  also  United 
States  v.  Cline  (1885),  26  Fed.  R.  515. 
See  also  Wagner  v.  Hallack  (1877),  3 
Colo.  176. 

A  consignee  to  whom  goods  are 
shipped  C.  O.  D.  has  neither  title  nor 
right  of  possession  which  will  sus- 
tain replevin  for  the  goods  against 
the  carrier,  before  payment  and  de- 
livery. Lane  v.  Chadwick  (1888),  146 
Mass.  68,  15  N.  E.  R.  121. 

1  The  intention  governs,  and  title 
may  pass  even  though  consignor  takes 
the  bill  of  lading  in  his  own  name 


and  does  not  send  it  to  vendee.  Straus 
v.  Wessel  (1876),  30  Ohio  St.  211 ;  Joyce 
v.  Swann  (1864),  17  C.  B.  (N.  S.)  84.  To 
like  effect :  Hobartv.  Littlefield  (1881), 
13  R.  I.  341. 

In  Joyce  v.  Swann,  siqyra,  the  court 
said:  "It  is  true  that  the  bill  of  lad- 
ing was  taken  in  the  names  of  the 
sellers,  and  at  the  time  the  insurance 
was  declared  was  unindorsed.  That 
was  a  circumstance  which  was  well 
worthy  the  attention  of  the  jury  and 
might  have  induced  them  to  come  to 
a  contrary  conclusion.  But  if  they 
thought  that,  notwithstanding  this, 
there  were  other  circumstances  suffi- 
ciently cogent  to  induce  them  to 
come  to  the  conclusion  that  the  prop- 
erty was  intended  to  pass,  I  am  of 
opinion  that  the  mere  circumstance 
of  the  form  of  the  bill  of  lading  and 
of  the  invoice  being  transmitted  to 
[an  agent]  instead  of  to  [the  buyer] 
direct  was  not  sufficient  to  annihilate 
the  other  evidence  in  the  cause, 
though  it  might  induce  the  jury  to 
pause.  The  cases  of  Wait  v.  Baker, 
2  Ex.  1,  and  Browne  v.  Hare,  3  H.  &  N. 
484,  4  id.  822,  appear  to  me  clearly  to 
establish  the  distinction  that  if,  from 
all  the  facts,  it  may  fairly  be  inferred 
that  the  bill  of  lading  was  taken  in 
the  name  of  the  seller  in  order  to  re- 
tain dominion  over  the  goods,  that 
shows  that  there  was  no  intention  to 
pass  the  property;  but  if  the  whole 


2  "The  general  rule  with  respect  to 
consignments  to  third  persons,  so  as 
to  place  the  property  at  the  risk  of 
the  buyer,  is  that  notice  shall  be 
given.  Goom  v.  Jackson,  5  Esp.  112. 
But  where  the  carrier  or  warehouse- 
man is  named  or  indicated  by  the 


buyer,  a  delivery  to  the  carrier,  etc., 
is  a  delivery  to  the  buyer.  Dawes  v. 
Peck,  8  T.  R.  330;  Cooke  v.  Ludlow, 
2  Bos.  &  P.  (N.  R.)  119."  Bradford  v. 
Marbury  (1847),  12  Ala.  520,  46  Am. 
Dec  264. 


617 


'41.] 


LAW    OF    SALE. 


[book  II. 


§  711.  Payment  of  freight  as  evidence.— It  has  been 

thought  in  a  few  cases1  that  the  fact  that  the  seller  was  to  pay 
the  freight  would  operate  to  prevent  the  passing  of  title  by- 
delivery  to  the  carrier;  but  it  is  clear  that  this  is  not  conclusive 
and  that  the  title  will  pass  if  such  appears  to  be  the  intention, 
notwithstanding  such  an  agreement.2 


of  the  circumstances  lead  to  the  con-    v.  Woodhall,  113  Mass.  391;  Havens 


elusion  that  that  was  not  the  object, 
the  form  of  the  bill  of  lading  has  no 
influence  on  the  result." 

In  Hobart  v.  Littlefield,  supra, 
where  the  bill  of  lading  had  been 
issued  to  the  sellers  and,  having 
been  indorsed  in  blank,  had  been  at- 
tached to  a  draft  on  the  buyer,  the 
court  said:  "  In  the  present  case  the 
title  might  pass  on  the  completion 
of  the  bargain,  and  the  selection  and 
appropriation  of  the  cotton  to  that 
purpose,  in  such  a  manner  that  the 
goods  would  be  at  the  buyer's  risk 
and  yet  the  seller  retain  possession 
of  them  by  himself  or  by  the  master, 
as  his  bailee  and  agent,  until  paid. 
If  the  retention  of  the  bill  of  lading 
was  merely  to  retain  the  possession 
of  the  cotton  for  this  purpose,  then 
the  title  and  the  risk  belonged  to  the 
defendants  [the  buyers]." 

But,  as  will  be  seen  in  a  following 
chapter,  the  seller  may  adopt  this  as 
a  method  of  retaining  security  for 
the  price,  and  in  such  a  case  the  title 
will  not  pass  until  payment  or  tender 
of  the  price.  See  chapter  VI,  follow- 
ing. 

1  See,  per  Holroyd,  J.,  in  Fragano 
v.  Long,  4  B.  &  C.  219.  See  also  De- 
vine  v.  Edwards,  101  111.  138. 

-  Though  the  fact  that  the  seller 
pays  the  freight  is  some  evidence, 
perhaps  prima  facie  evidence,  that 
the  title  has  not  passed  (Berger  v. 
State,  50  Ark.  20,  6  S.  W.  R.  15;  Suit 


v.  Grand  Island  L.  &  F.  Co.,  41  Neb. 
153,  59  N.  W.  R.  681;  McLaughlin  v. 
Marston,  78  Wis.  670,  47  N.  W.  R. 
1058),  it  is  not  conclusive,  and  the  title 
will  nevertheless  pass  if  such  appears 
to  have  been  the  intention.  Neimeyer 
Lumber  Co.  v.  Burlington  R.  Co.,  54 
Neb.  321,  74  N.  W.  R.  670,  40  L.  R.  A.' 
534;  Wagner  v.  Breed,  29  Neb.  720;  , 
Mee  v.  McNider  (1888),  109  N.  Y.  500, 
17  N.  E.  R.  424;  Hobart  v.  Littlefield, 

13  R.  I.  341;  Tregelles  v.  Sewell,  7 
Hurl.  &  Nor.  574;  Dun  lop  v.  Lam- 
bert, 6  CI.  &  Fin.  600. 

F.  0.  B.—  This  agreement  that  the 
seller  shall  pay  the  freight  often 
takes  the  form  of  an  agreement  to 
deliver  f.  o.  b.  (free  on  board)  at  a 
certain  place.  The  initials  f.  o.  b.,  it 
is  said,  have  a  well-defined  meaning 
of  which  the  courts  takes  judicial 
cognizance;  they  are  not  ambiguous 
and  admit  of  no  parol  explanation; 
they  mean  that  the  seller  is  to  de- 
liver the  goods  at  the  point  named 
free  of  costs  or  charges  of  transporta- 
tion. Sheffield  Furnace  Co.  v.  Hull 
Coal  &  Coke  Co.  (1893),  101  Ala.  446, 

14  S.  R.  672;  Capehart  v.  Furman 
Farm  Improvement  Co.  (1893),  103 
Ala.  671,  16  S.  R.  627. 

Where  the  point  at  which  the  goods 
are  to  be  delivered  f.  o.  b.  is  the  place 
of  shipment,  the  letters  mean  that 
the  goods  are  there  to  be  put  on  board 
the  vehicle  for  transportation  free 
from   cartage    or    loading    charges. 


618 


CH.  IV.]  EXISTING    CHATTELS    NOT   YET    IDENTIFIED. 


L§  742. 


On  the  other  hand,  the  fact  that  the  purchaser  is  to  pay  the 
freight  is  evidence  that  the  carriage  is  at  his  risk;  but  this  like- 
wise is  not  conclusive,  for  the  agreement  of  the  parties  may 
be  such  that  the  seller  retains  the  title  for  security  or  other- 
wise, notwithstanding  a  delivery  to  the  carrier  for  carriage  at 
the  expense  of  the  purchaser.1 

g  742.  Agreement  that  goods  shall  not  be  paid  for 

unless  they  arrive. —  So  notwithstanding  such  a  delivery  to 
the  carrier  as  will  pass  the  title  to  the  property,  it  may  be  evi- 
dent from  the  agreement  of  the  parties  that  the  goods  were 
not  to  be  paid  for  unless  they  reached  their  destination,  and  if 
such  was  the  agreement  it  will  be  given  effect.2     In  dealing 


Ex  parte  Rosevear  China  Clay  Co. 
(1879),  11  Ch.  Div.  560;  Silberinan  v. 
Clark  (1884),  96  N.  Y.  522. 

When  the  point  named  is  the  point 
of  destination,  they  mean  that  the 
seller  is  to  pay  the  freight  to  that 
point.  Knapp  Electrical  Works  v. 
N.  Y.  Insulated  Wire  Co.  (1895),  157 
111.  456.  42  N.  E.  R.  147;  Miller  v.  Sea- 
man (1896),  176  Pa.  St.  291,  35  Atl.  R. 
134. 

Where  the  language  is,  "Prices 
f.  o.  b."  at  a  price  named,  it  indicates 
the  cost  of  the  goods  to  the  buyer  atv 
that  place.  Neimeyer  Lumber  Co.  v. 
Burlington,  etc.  R.  Co.  (1898),  51  Neb. 
321,  74  N.  W.  R.  670,  40  L.  R.  A.  534. 

Under  an  agreement  to  deliver 
f.  o.  b.  at  maker's  shop,  the  goods  are 
delivered  and  title  passes  when  goods 
placed  on  the  cars  for  shipment, 
though  the  bill  of  lading  may  not 
actually  be  issued  and  dated  until  a 
few  days  later.  Congdon  v.  Kendall 
(1898),  53  Neb.  282,  73  N.  W.  R.  659. 

1  See  second  chapter  following. 

2  This  is  clearly  shown  by  the  fa- 
mous case  of  The  Calcutta  Co.  v.  De 
Mattos  (1863),  32  L.  J.  Q.  B.  322,  33  id. 
214.     In  that  case  A  contracted  to 


supply  to  B  one  thousand  tons  of 
coal,  delivered  at  Rangoon  alongside 
craft,  etc.,  as  might  be  directed  by 
B:  the  price  to  be  45s.  per  ton  deliv- 
ered at  Rangoon;  payment,  onedialf 
of  invoice  value  by  bill  at  three 
months  on  handing  bills  of  lading 
and  policy  of  insurance  to  cover  the 
amount,  or  in  cash  at  five  per  cent, 
discount  at  A's  option;  and  the  bal- 
ance in  cash  on  right  delivery  at 
Rangoon.  A  chartered  a  ship  in  pur- 
suance of  his  contract  and  shipped 
on  board  one  thousand  one  hundred 
and  sixty-six  tons  of  coal,  and  deliv- 
ered to  B  the  bill  of  lading  and  a  pol- 
icy covering  half  the  invoice  price, 
and  B  paid  the  half  invoice  price. 
On  the  voyage  the  ship  became  dis- 
abled, and  the  master  chartered  an- 
other vessel  and  transhipped  eight 
hundred  and  fifty  tons  of  the  coal  at 
45s.  per  ton  freight  to  Rangoon.  On 
arrival  at  Rangoon  the  master  of 
this  latter  vessel  offered  the  coal  to 
B's  agent  for  B  on  payment  of  the 
45s.  freight;  this  offer  was  refused, 
and  the  coals  were  afterwards  put  up 
for  sale  by  auction  by  direction  of 
the  master,  and  were  purchased  bona 


619 


742.] 


LAW  OF  SALE. 


[LOOK  11. 


with  cases  of  this  nature  care  must  be  taken  to  discriminate 
between  those  like  the  ones  now  under  consideration,  which 
involve  the  question  merely  of  such  designation  and  delivery 
as  will  suffice  to  change  an  executory  into  an  executed  con- 
tract, and  those  previously  considered,  which  involve  the  ques- 


fide  by  B's  agent  for  B  at  25s.  per 
ton,  that  being  the  best  price  that 
could  be  obtained  for  them  there.    A 
brought  an  action  against  B  to  re- 
cover for  the  other  half  of  the  in- 
voice, or  at  least  for  the  eight  hun- 
dred and   fifty  tons    which  B  had 
obtained  as  aforesaid;  and  B  brought 
an  action  against  A  to  recover  back 
the  amount  of  the  half  invoice  paid 
to  him.    The  two  cases  were  argued 
together.     In  the  court  of  Queen's 
Bench  it  was  held  by  Cockburn,  C.  J., 
and  Wightman,  J.,  that  by  the  con- 
tract, though  the  property  in  t#ie  coal 
passed  to  B  on  the  shipment  and  de- 
livery of  the  shipping  documents,  A 
was  bound  to  deliver  the  coal  at  Ran- 
goon, and  not  having  delivered  any 
(as  the  purchase  by  B's  agent  was  no 
delivery  under  the  contract)  he  was 
liable  to  refund  to  B  the  half  which 
he   had  received  of  the    purchase- 
money  and  for  damages  for  the  non- 
delivery.   By  Blackburn  and  Mellor, 
JJ.,  it  was  held  that  the  property  in 
the  coal  passed  to  B,  the  right  of  A 
to  the  second  half  of  the  price  being 
contingent  on  the  right  delivery  at 
Rangoon ;  and  that,  therefore,  under 
the  circumstances  that  had  occurred, 
neither  party  had  any  right  of  action 
against  the  other.     On  appeal  to  the 
exchequer  chamber  it  was  held  by 
Erie,  C.  J.,  Willes,  J.,  and  Channell,  B., 
that  the  property  in  the  coal  passed 
to  B  on  A's  shipping  it  on  board  and 
delivering  to  B  the  bills  of  lading 
and  policy  of  insurance;  and  that  A 
having  done  this  was  entitled  to  re- 


tain the  half  of  the  invoice  price  that 
had  been  paid  to  him;  that  A  was 
bound  to  have  delivered  to  B  at  Ran- 
goon so  much  of  the  coal  as  arrived 
there;  that  the  offer  of  the  coal  at 
Rangoon  on  condition  of  paying  the 
freight  of  45s.  per  ton  was  not  a  de- 
livery in  accordance  with  the  con- 
tract, and  therefore  that  A  was  not 
entitled  to  demand  from  B  any  part 
of  the  residue  of  the  invoice  price; 
and   semble,  by  Willes,  J.,   that  B 
might  sue  A  for  the  non-delivery  at 
Rangoon,  and  recover  as  damages 
the  difference  between  the  25s.  per 
ton  which  B  paid  to  get  the  coal  and 
the  22s.  Qd.  which  B  was  to  have  paid 
under  the  contract.     By  Martin  and 
Pigott,  BB.,  held,  that  the  property 
in  the  coal  did  not  pass  to  B,  but  that, 
by  the  special  terms  as  to  payment, 
A  was  entitled  to  keep  the  half  price 
paid  him,  but  that  he  could  not  re- 
cover more,  since  he  had  not  deliv- 
ered the  coal  at  Rangoon  pursuant 
to  his  contract;  by  Williams,  J.,  that 
the  property  in  the  coal  passed  to  B 
on  the  shipment  and  delivery  of  the 
shipping  documents;  but  that  A  was 
bound  to  deliver  the  coal  at  Rangoon, 
and  that,  as  he  had  not  done  so,  B 
was  entitled  to  recover  back  the  half 
price  paid,  and  also  any  damages  sus- 
tained by  A's  breach  of  contract  in 
not  delivering  the  coal.     An  extract 
from  the  opinion  of  Blackburn,  J., 
which  was  approved  by  a  majority 
of  the  judges,  will  be  found  in  the 
text  of  the  following  section. 


620 


CH.  IV.]       EXISTING    CIIATTELS    NOT    YET    IDENTIFIED.       [§§  743,  744. 

tion  whether  a  delivery  to  a  carrier  is  a  good  acceptance  and 
receipt  to  satify  the  statute  of  frauds.1  In  several  cases  of  the 
first  kind  authorities  upon  the  latter  question  have  erroneously 
been  deemed  controlling  though  the  true  question  was  clearly 
different. 

§743.  Further  of  the  intention. —  Upon  this  ques- 
tion of  intention  the  language  of  Lord  Blackburn  in  the  lead- 
ing case 2  cited  in  the  note  has  been  often  quoted  with  approval: 
"  There  is  no  rule  of  law  to  prevent  the  parties  in  cases  like 
the  present  from  making  whatever  bargain  they  please.  If 
they  use  words  in  the  contract  showing  that  they  intend  that 
the  goods  shall  be  shipped  by  the  person  who  is  to  supply 
them,  on  the  terms  that  when  shipped  they  shall  be  the  con- 
signee's property  and  at  his  risk,  so  that  the  vendor  shall  be 
paid  for  them  whether  delivered  at  the  port  of  destination  or 
not,  this  intention  is  effectual.  Such  is  the  common  case  where 
goods  are  ordered  to  be  sent  by  a  carrier  to  a  port  of  destina- 
tion. The  vendor's  duty  is  in  such  cases  at  an  end  when  he 
has  delivered  the  goods  to  the  carrier;  and  if  the  goods  per- 
ish in  the  carrier's  hands,  the  vendor  is  discharged  and  the 
purchaser  is  bound  to  pay  him  the  price.3 

§  744.  .  "  If  the  parties  intend  that  the  vendor  shall 

not  merely  deliver  the  goods  to  the  carrier,  but  also  under- 

xThus  it  is  said  in  Wait  v.  Baker  payment  or  subsequently  by  part  ac- 

(1848),  2  Exch.   1:    "It  may  be  ad-  ceptance, then  there  is  no  doubt  that 

mitted  that  if  goods  are  ordered  by  the  property  passes  by  such  delivery 

a  person,  although  they  are  to  be  se-  to  the  carrier."     See  also  Cross  v. 

lected  by  the  vendor  and  to  be  deliv-  O'Donnell  (1871),  44  N.  Y.  661,  4  Am. 

ered  to  a  common  carrier  to  be  sent  R.  721.     The  distinction  between  ac- 

to  the  person  by  whom  they  have  ceptance  and  delivery  to  satisfy  the 

been  ordered,  the  moment  the  goods,  statute  of  frauds  and  delivery  to  pass 

which  have  been  selected  in  pursu-  the    title    generally  is   commented 

ance  of  the  contract,  are  delivered  to  upon  in  Hobart  v.  Littlefield  (1881), 

the  carrier,  the  carrier  becomes  the  13  R.  L  341. 

agent  of  the  vendee,  and  such  a  de-        ^Calcutta  Co.  v.  De  Mattos,  32  L. 

livery  amounts  to  a  delivery  to  the  J.  Q.  B.  322,  33  id.  214,  in  Ex.  Ch. 
vendee;  and  if  there  is  a  binding  con-        3  Citing  Dunlop  v.  Lambert,  6  CI. 

tract  between  the  vendor  and  vendee,  &  Fin.  600. 
either  by  note  in  writing  or  by  part 

621 


§§  74:5,  746.]  LAW  OF  sale.  [book  n. 

take  that  they  shall  actually  be  delivered  at  their  destination, 
and  express  such  intention,  this  also  is  effectual.  In  such  a 
case,  if  the  goods  perish  in  the  hands  of  the  carrier,  the  vendor 
is  not  only  not  entitled  to  the  price,  but  he  is  liable  for  whatever 
damage  may  have  been  sustained  by  the  purchaser  in  conse- 
quence of  the  breach  of  the  vendor's  contract  to  deliver  at  the 
place  of  destination.1 

§745.  .  "But  the  parties  may  intend  an  intermediate 

state  of  things;  they  may  intend  that  the  vendor  shall  de- 
liver the  goods  to  the  carrier;  and  that  when  he  has  done  so 
he  shall  have  fulfilled  his  undertaking,  so  that  he  shall  not  be 
liable  in  damages  for  a  breach  of  contract  if  the  goods  do  not 
reach  their  destination,  and  yet  they  may  intend  that  the 
whole  or  part  of  the  price  shall  not  be  payable  unless  the  goods 
do  arrive.  They  may  bargain  that  the  property  shall  vest  in  the 
purchaser  as  owner  as  soon  as  the  goods  are*  shipped,  that  then 
they  shall  be  both  sold  and  delivered,  and  yet  that  the  price  (in 
whole  or  in  part)  shall  be  payable  only  on  the  contingency  of 
the  goods  arriving,  just  as  they  might,  if  they  pleased,  contract 
that  the  price  should  not  be  payable  unless  a  particular  tree 
fall,  but  without  any  contract  on  the  vendor's  part  in  the  one 
case  to  procure  the  goods  to  arrive,  or  in  the  other  to  cause 
the  tree  to  fall." 

§  746.  Goods  must  be  sent  in  conformity  with  order- 
But  in  order  that  the  delivery  of  the  goods  to  the  carrier  shall 
operate  to  pass  the  title  to  the  consignee,  it  is  essential  that 
the  goods  so  delivered  shall  conform  in  quantity  and  quality 
with  the  order  given  for  them,  and  be  sent  at  the  time  and  in 
the  manner  agreed  upon.  If,  therefore,  the  vendor  sends  more 
or  less  than  the  quantity  ordered  or  of  a  different  quality,2  or 

1  Citing  Dunlop  v.  Lambert,  supra,  order  and  imposed  no*  obligation  on 

2  In  Barton  v.  Kane  (1863),  17  Wis.  the  defendant  without  showing  an  ac- 
37,  84  Am.  Dec.  728,  an  order  for  five  ceptance  in  fact  by  him  after  the 
thousand  cigars  was  given.  The  cigars  were  received,  the  burden  of 
vendor  sent  five  thousand  six  hun-  which  was  upon  the  plaintiff.  Tocon- 
dred  and  twenty-five.  Said  the  court :  stitute  a  delivery  to  the  carrier,  a  de- 
"  This  was  no  compliance  with  the  livery  to  the  consignee,  so  as  to  pass 

G22 


CH.  IT.]  EXISTING    CHATTELS   NOT   YET    IDENTIFIED.  [§  74:6. 


at  a  different  time,  or  in  a  different  manner,1  or  otherwise  ma- 
terially vary  from  the  order,2  the  title  will  not  pass  unless  the 


the  title  and  make  the  consignee  lia- 
ble for  goods  sold  and  delivered,  the 
goods  must  correspond  in  quantity  as 
•well  as  quality  with  those  named  in 
the  order.  Bruce  v.  Pearson,  3  Johns. 
(N.  Y.)  534,  and  Downer  v.  Thomp- 
son, 2  Hill  (N.  Y.),  137,  are  clear  upon 
this  question,  and  though  the  latter 
was  reversed  in  the  court  of  errors 
(6  Hill,  208),  the  main  point  of  re- 
versal cannot  arise  here.  There  can 
be  no  pretense  that  the  six  hundred 
and  twenty-five  extra  cigars  were  sent 
out  of  an  abundance  of  caution,  and 
to  insure  a  scriptural  compliance  with 
the  order.  They  were  sent  to  fill  up 
the  case  and  the  defendant  was 
charged  with  their  price.  To  entitle 
himself  to  recover  under  these  cir- 
cumstances the  plaintiff  should  have 
shown  that  the  defendant  actually 
received  and  accepted  the  cigars 
sent,  upon  the  terms  indicated  in 
the  plaintiff's  letter  notifying  him 
of  the  consignment."  To  the  same 
effect  are  Larkin  v.  Mitchell  Lum- 
ber Co.  (1879),  42  Mich.  296,  3  N.  W. 
R.  904  (In  this  case  plaintiff  had  sent 
more  shingles  than  defendant  had 
ordered;  defendant  "in  good  faith 
and  for  plaintiff's  benefit  took  them 
in  charge  as  goods  consigned  for  sale 
but  not  purchased,  and  advanced 
the  freight  charges;"  while  so  situ- 
ated the  shingles  were  destroyed  by 
accidental  fire.  Held,  that  the  title 
to  the  excess  did  not  pass  and  the 
consignee  could  recover  from  the 
consignor  the  amount  paid  for 
freight);  Levy  v.  Green  (1859),  1  E. 
&  E.  969,  102  Eng.  Com.  L.  968  (where 
it  was  held  that  if  the  consignor  sent 
less  than  were  ordered  of  a  particu- 
lar kind,  and  also  other  goods  not 


ordered,  all  in  an  indistinguishable 
mass,  the  consignee  might  reject  the 
whole  consignment);  Cunliffe  v.  Har- 
rison (1851),  6  Ex.  903  (to  same  effect): 
Rommel  v.  Win  gate  (1869).  103  Mass. 
327;  Hart  v.  Mills  (1846),  15  M.  &  W. 
85;  Dixon  v.  Fletcher  (1837),  3  M.  & 
W.  145  (though  if  he  holds  them 
without  objecting  within  a  reason- 
able time,  he  waives  the  defect);  Ellis 
v.  Roche  (1874),  73  IU.  280. 

The  same  rule  applies  where  the 
vendor  sends  less  than  was  ordered, 
though  if  the  purchaser  assents  or 
accepts  the  goods  the  variance  may 
be  waived.  Richardson  v.  Dunn(1841), 
2  Q.  B.  218,  42  Eng.  Com.  L.  645; 
Downs  v.  Marsh  (1860),  29  Conn.  409. 

So  if  the  goods  sent  are  of  a  differ- 
ent kind.  Gardner  v.  Lane  (1865),  9 
Allen  (Mass.),  492,  85  Am.  Dec.  779; 
Barton  v.  Kane  (1863),  17  Wis.  38,  84 
Am.  Dec.  728.  The  burden  is  on  the 
seller  to  show  that  he  complied  with 
the  terms  of  the  order.  Wolf  v. 
Dietzsch  (1874),  75  111.  205. 

1  If  the  seller  disregards  the  in- 
structions of  the  buyer  as  to  the 
method  of  shipment  or  the  carrier  to 
be  employed,  the  title  does  not  pass 
and  the  goods  are  at  the  seller's  risk. 
Wheelhouse  v.  Parr  (1886),  141  Mass. 
593,  6  N.  E.  R.  787:  Hills  v.  Lynch 
(1864),  3  Robt.  (N.  Y.)  42.  As  where 
the  goods  are  ordered  to  be  sent  by 
water  but  are  shipped  by  land  car- 
rier. Corning  v.  Colt  (1830),  5  Wend. 
(N.  Y.)  253.  So  where  the  goods  are 
ordered  shipped  from  a  certain  place 
(Jones  v.  Schneider  (1875),  22  Minn. 
279),  or  at  a  certain  time  (Hoover  v. 
Maher  (1892),  51  Minn.  269,  53  X.  W. 
R.  646). 

2  In  Woodruff  v.  Noyes  (1843),  15 


623 


§§  747,  748.]  law  or  sale.  [book  ii. 

purchaser  accepts  them.     A  fortiori  if  goods  are  sent  without 
being  ordered  no  title  passes  unless  they  are  accepted. 

§  747.  Due  care  must  be  used  in  shipping. —  And  not  only 
must  the  goods  conform  in  quantity  and  quality  with  the  order 
and  be  sent  in  the  manner,  if  any,  designated  by  the  buyer, 
but  the  seller  must  also,  if  he  would  pass  the  title  and  cast  the 
risk  upon  the  buyer,  take  such  precautions  as  to  packing,  di- 
recting and  shipping  the  goods  as  are  reasonably  necessary  to 
secure  their  safe  arrival  at  their  place  of  destination.  If  he 
neglects  to  do  this,  and  the  goods  are  thereby  lost,  the  buyer 
will  not  be  liable  for  the  price.1 

§  748.  Remedy  over  against  carrier  must  be  pre- 
served.—  And  so,  "  while  it  is  the  rule  that  the  delivery  of 
goods  bought,  to  a  carrier  to  be  conveyed  to  the  vendee,  is  a 
complete  delivery  to  the  latter,  and  vests  the  property  in  the 
goods  in  him,  yet  the  delivery  to  a  carrier  is  incomplete  to 
charge  the  vendee  for  the  price  of  the  goods  if  lost,  unless  the 
vendor,  in  so  delivering  them,  exercises  due  care  and  diligence 
so  as  to  provide  the  consignee  with  a  remedy  over  against  the 
carrier." 2 

But  where  goods  are  ordered  to  be  shipped,  and  no  other  in- 
structions are  given,  the  seller  has  implied  power  to  avail  him- 

Conn.  335,  the  goods  were  ordered  iff  could  not  recover  for  the  goods, 
shipped  "  to  the  care  of  F.  W.  Bush-  but  the  supreme  court  reversed  this, 
nell,"  but  they  were  not  so  shipped,  holding  that  there  was  a  sale  and 
Held,  that  the  purchaser  was  not  constructive  delivery,  and  that 
bound  to  accept  them.  plaintiff  could  recover  unless  it  were 
In  Garretson  v.  Selby  (1873),  37  shown  that  this  transposition  of  the 
Iowa,  529,  18  Am.  R.  14,  it  appeared  initials  caused  the  loss, 
that  H.  W.  Selby  had  ordered  goods  1  Finn  v.  Clark  (1865),  10  Allen 
of  plaintiff.  Selby  was  a  member  of  (Mass.),  479,  12  Allen.  522.  Goods 
the  firm  of  H.  W.  Selby  &  Co.,  but  must  be  properly  packed  and  pro- 
plaintiff  did  not  know  of  the  exist-  tected.  Wilson  v.  Fruit  Co.,  11  Ind. 
ence  of  the  firm.  The  goods  were  App.  89,  38  N.  E.  R.  827. 
shipped  directed  (by  mistake)  to  2  Clarke  v.  Hutchins,  14  East,  475; 
W.  H.  Selby,  but  never  came  to  the  Buckman  v.  Levi,  3  Campb.  414; 
possession  of  H.  W.  Selby  or  his  firm.  Ward  v.  Taylor,  56  111.  494. 
The  court  below  held  that  the  plaint- 

624 


CH.  IV.]       EXISTING    CHATTELS    NOT   YET   IDENTIFIED.       [§§  749,  750. 

self  of  the  usual  and  appropriate  means  to  accomplish  that  re- 
sult. If,  therefore,  for  example,  the  carrier  will  not  accept 
goods  of  a  certain  kind  for  transportation  without  a  stipulation 
limiting  his  liability,  the  seller  having  general  instructions  to 
ship  by  such  a  carrier  has  been  held  to  have  implied  power  to 
stipulate  for  such  a  release.1 

§  749.  Duty  to  insure. —  "In  the  absence  of  a  special 

contract,"  it  is  said,2  "the  seller  of  goods  is  not  bound  to  in- 
sure, nor  to  impart  any  information  upon  the  subject  of  insur- 
ance." But  such  an  obligation  may  undoubtedly  be  imposed 
by  agreement,  or  instructions,  or  even  by  a  course  of  dealing 
to  that  effect.3 

§  750.  What  constitutes  delivery  to  the  carrier. —  The 

question,  what  constitutes  such  a  delivery  to  the  carrier  in  these 
cases  as  will  amount  to  an  appropriation  of  the  goods  to  the 
contract,  has  occasioned  some  difficulty.  No  inflexible  rule 
can  be  laid  down,  but,  in  general,  it  must  be  such  an  act  as  un- 
conditionally and  unreservedly  places  the  goods  in  the  posses- 
sion and  under  the  control  of  the  carrier.4  "  What  amounts  to 
a  delivery  to  carriers,"  it  was  said  in  one  case,5  "  may  some- 
times be  a  question  of  fact  for  a  jury;  ordinarily,  delivery  at 
their  wharf,  freight  house  or  warehouse,  and  bringing  it  to  the 
notice  of  the  servants  of  the  carriers,  would  be  so  considered. 
A  delivery  at  a  wharf  ma}'  be  of  itself  an  incomplete  act,  to  be 
explained  by  what  has  preceded  it  or  by  what  takes  place  sub- 
sequently.6    No  one  would  contend  that  if  the  [goods]  had 

i  Stafford  v.  Walter.  67  111.  83.  Co. 'v.  Nettleship,  L.  R.  3  C.  P.  499, 

2Bartlett  v.  Jewett,  98  lnd.  206.  502;  Packard  v.  Getman,  6  Cow.  (N. 

See  also  Elmore  v.  Kearney,  23  La.  Y.)  757,  16  Am.  Dec.  475;  Railroad 

Ann.  479.  Co.  v.  Barrett,  36  Ohio  St.  448.     See 

3  See     New    York    Tartar    Co.    v.  also  Schmidt  v.  Nunan,  63  Cal.  371. 
French,  154  Pa.  St.  273, 26  Atl.  R.  425.        Where  the  contract  is  for  the  sale 

4  See  Mechem's  Hutchinson  on  Car-  of  a  car-load  or  a  boat-load,  etc.,  the 
riers,  §  94  et  seq.  title  does  not  pass  until  the  car,  boat, 

s  Hobart  v.  Littlefield  (1881),  13  R.  I.    etc.,  is  full.    Rochester,  etc.  Oil  Co. 
341.  v.  Hughey,  56  Pa.  St.  322;  Hays  v. 

e  Citing  The  M.  K.  Rawley,  2  Low.    Pittsburgh  Packet  Co.,  33  Fed.  R. 
Dec.  447;  British  Columbia  Sawmill    552. 
40  625 


§§   751,  752.]  LAW   OF   SALE.  [book   II. 

been  merely  delivered  on  the  wharf,  and  no  information  given 
to  the  master  or  his  servants  of  the  purpose  for  which  it  was 
delivered,  he  could  be  considered  as  having  received  it,  either 
so  as  to  bind  his  owners  or  as  agent  of  the  buyer." 

5.  Of  Appropriation  where  Goods  Consigned  on  Account  of 
Previous  Advances. 

%  751.  How  when  goods  consigned  on  account  of  previous 
advances. —  Analogous  to  the  question  of  the  last  sections  is 
that  which  arises  when  advances  have  been  made  by  one  per- 
son to  another  upon  the  strength  of  consignments  thereafter 
to  be  made.  The  question  here  is  what  appropriation  is  suffi- 
cient to  fix  the  goods  with  a  lien  or  charge  for  the  advance- 
ments. It  most  frequently  arises  where  the  advances  have 
been  made  by  a  factor,  and  this  aspect  of  the  question  has  been 
considered  in  another  work;1  but  some  general  statement  of 
the  rules  seems  desirable  here. 

g  752.  .  Upon  this  question  the  authorities  are  in  con- 
flict, one  line  of  cases  holding  that  no  lien  or  charge  will  attach 
until  the  goods  are  actually  in  the  possession  of  the  consignee,2 
while  another  line  maintains  that  where  advances  have  pre- 
viously been  made  in  reliance  upon  a  promise  to  subsequently 
consign  goods,  a  delivery  to  a  common  carrier  consigned  to 
the  creditor  is  sufficient.3     The  true  rule  seems  to  be  that  laid 

*  Mechem  on  Agency,  §  1033.  to  pay  the  advance  or  pay  any  in- 

2  Saunders  v.  Bartlett.  12  Heisk.  debtedness,  he  may  or  may  not  com- 
(Tenn.)  316;  Oliver  v.  Moore,  id.  482;  ply  with  his  contract.  He  may  ship 
Woodruff  v.  Nashville,  etc.  R.  Co.,  2  it  to  C,  or  he  may  ship  it  to  B  upon 
Head  (Tenn.),  87.  conditions.     As  owner  he  can   dis- 

3  Elliott  v.  Cox,  48  Ga.  39;  Harde-  pose  of  it  as  he  pleases.  But  if  he 
man  v.  De  Vaughn,  49  Ga.  596 ;  Wade  actually  ships  it  to  B  in  pursuance  of 
v.  Hamilton,  30  Ga.  450;  Nelsou  v.  his  contract,  the  title  vests  in  B  upon 
Railroad  Co.,  2  111.  App.  180.  the  shipment.    The  highest  evidence 

In    Bailey    v.    Hudson    R.    R.  Co.     that  he  has  done  so  is  the  consign- 
(1872),  49  N.  Y.  70,  it  is  said:  "If  A    ment  and  unconditional  delivery  to 
has  property  upon  which  he  has  re-    B  of  the  bill  of  lading." 
ceived  an  advance  from  B  upon  an        In.  Desha  v.  Pope  (1844),  6  Ala.  690, 
agreement  that  he  will  ship  it  to  B    41  Am.  Dec.  76,  it  is  said:  "  The  mere 

626 


C.H.   IV.]  EXISTING    CHATTELS    NOT    YET    IDENTIFIED.  [§  752. 

clown  by  Chief  Justice  Redfield  in  Vermont,  that  in  order  to 
give  to  the  party  making  the  advances  a  charge  upon  the  goods 
consigned,  but  not  actually  received,  two  things  must  concur: 
1.  The  consignment  must  be  in  terms  to  the  creditor;  and 


agreement  to  ship  goods  in  satisfac- 
tion of  antecedent  advances  will  not, 
in  general,  give  the  factor  or  con- 
signee a  lien  upon  them  for  his  gen- 
eral balance,  until  they  come  to  his 
actual  possession;  but  if  there  is  a 
specific  pledge  or  appropriation  of 
certain  ascertained  goods,  accompa- 
nied with  the  intention  that  they 
shall  be  a  security,  or  the  proceeds  as 
a  payment,  and  they  are  deposited 
with  a  bailee,  then  the  property  is 
changed,  and  vests  in  the  individual 
to  whom  they  are  to  be  delivered  by 
the  depositary." 

In  Valle  v.  Cerre  (1865),  36  Mo.  575, 
88  Am.  Dec.  161,  it  is  said:  "Where 
acceptances  have  actually  been  given 
upon  the  faitli  of  a  consignment  by 
bill  of  lading,  there  can  be  no  doubt 
that  the  consignee  acquires  such  a 
lien  or  property  in  the  goods  as  no 
subsequent  act  of  conveyance  can 
divest;  such  an  acceptance  is  held 
to  be  an  advance  upon  the  particu- 
lar shipment.  Where  there  has  been 
no  advance  or  acceptance  expressly 
made  upon  the  particular  consign- 
ment, and  the  question  is  only  of  a 
general  balance  of  account  for  pre- 
vious advances,  the  case  differs  not 
so  much  in  principle  as  in  the  evi- 
dence required  to  establish  the  lien. 
It  matters  not  whether  the  lien  for 
a  balance  of  account  arises  by  oper- 
ation of  law  from  the  usage  of  trade, 
or  from  the  positive  and  special 
agreement  and  understanding  of  the 
parties;  and  it  may  extend  to  all 
sums  for  which  a  factor  has  become 
liable  as  surety  or  otherwise  for  his 


principal,  whenever  the  suretyship 
has  resulted  from  the  nature  of  the 
agency,  or  the  express  arrangement 
of  the  parties,  or  it  has  been  under- 
taken upon  the  footing  of  such  a 
lien.  Whether  or  not  the  given  con- 
signment is  to  be  considered  as  made 
to  cover  a  general  balance  of  ac- 
count will  depend  upon  the  special 
arrangements,  agi'eement  and  un- 
derstanding of  the  parties:  but  where 
such  an  arrangement  exists,  and  the 
consignment  is  made  in  pursuance 
of  it,  and  there  is  nothing  else  in  the 
case  which  is  inconsistent  with  the 
hypothesis,  the  case  would  be  gov- 
erned by  the  same  principle,  and  a 
delivery  to  the  carrier  will  be  con- 
sidered as  a  constructive  delivery  to 
the  consignee.  In  such  case  the 
shipment  and  delivery  of  the  goods 
to  the  carrier,  under  the  bill  of  lad- 
ing, amounts  to  a  specific  appropria- 
tion of  the  property  with  an  inten- 
tion that  it  shall  be  a  security  or  a 
payment  to  the  consignee  for  the 
advances  he  has  made." 

In  an  Illinois  case  it  was  held  that 
a  consignor  who  had  put  goods  into 
the  possession  of  a  common  carrier 
to  be  carried  and  delivered  to  a  fac- 
tor in  pursuance  of  a  preceding  ar- 
rangement and  to  apply  on  prior 
advances,  and  had  taken  a  bill  of 
lading  in  the  factor's  name,  had,  be- 
fore the  shipment  of  the  goods  and 
before  the  delivery  of  the  bill  of 
lading  to  the  factor,  the  right  to 
change  the  destination  of  the  goods 
and  that  the  carrier  was  bound  to 
obey  such  directions.     Lewis  v.  Ga- 


G27 


§  752.] 


LAW    OF    SALE. 


[BOOK   II. 


2,  the  advances  must  have  been  made  upon  the  faith  of  this 
particular  consignment.1  These  cases  are  of  course  distinct  from 
those  in  which  advances  have  been  made  in  reliance  upon  a 
particular  shipment  of  which  constructive  delivery  has  been 
made  by  the  transfer  of  the  bill  of  lading  or  other  like  docu- 
ment.2 


lena,  etc.  R.  Co.,  40  111.  281.  Same 
point:  Strahorn  v.  Union  Stock 
Yard  Co.,  43  111.  424,  92  Am.  Dec.  142. 
•  i  In  Davis  v.  Bradley  (1855),  28  Vt. 
118,  65  Am.  Dec.  226,  approving  Hol- 
brook  v.  Wight  (1840),  24  Wend. 
(N.  Y)  169,  35  Am.  Dec.  607.  To 
the  same  effect:  Hodges  v.  Kimball 
(1878),  49  Iowa,  577,  31  Am.  R.  158; 
First  Nat.  Bank  v.  McAndrews  (1885), 


5  Mont.  325,  51  Am.  R.  51.  See  also 
Grosvenor  v.  Phillips  (1841),  2  Hill 
(N.  Y),  147;  Bonner  v.  Marsh  (1848), 
10  Sm.  &  M.  (Miss.)  376,  48  Am.  Dec. 
754. 

2  As  in  First  Nat.  Bank  v.  Dear- 
born (1874),  115  Mass.  219,  15  Am.  R. 
92;  De  Wolf  v.  Gardner  (1853),  12 
Cush.  (Mass.)  19,  59  Am.  Dec.  165. 


628 


CHAPTER  V. 


OF  CONTRACTS  RESPECTING  GOODS  TO  BE  MANUFACTURED  OR 

GROWN. 


§  753.  Purpose  of  this  chapter. 

I.  Where  Goods  are  to  be  Manu- 
factured. 

754.  Title  ordinarily  does  not  pass 

until  goods  are   completed 
and  tendered. 

755.  Title  does  not  pass  dur- 
ing progress  of  work. 

756.  Especially  if  yet  to   be 

separated  from  larger  mass. 

757.  Same  rule  where  goods  to  be 

manufactured  and  shipped. 

758.  Goods  must  correspond 

with  order. 


§  759.  Title  may  pass  sooner  if  such 
appears  to  have  been  inten- 
tion. 

760.  Even  without  actual  de- 
livery. 

761.  When  title  passes  to  article 

designed   for,   but  not    an- 
nexed to,  another. 

762.  Articles  to  be   supplied 

as  repairs  or  alteration  of 
chattel. 

II.  Where  Goods  are  to  be  Grown. 
763-765.  Title  passes  when  chattel 
grown  and  appropriated. 


§  753.  Purpose  of  this  chapter. —  In  the  preceding  chapter 
attention  has  been  given  to  the  effect  of  contracts  for  the  sale 
of  chattels  then  in  existence,  but  not  yet  designated,  set  apart 
or  appropriated  to  the  contract.  There  yet  remains  to  be  con- 
sidered that  class  of  contracts  which  relate  to  the  sale  of  goods 
not  then  in  existence,  but  which  are  to  be  manufactured,  grown 
or  otherwise  produced  in  pursuance  of  the  contract  and  which 
are  to  be  supplied  in  performance  of  it.1  This  question  will  Le 
dealt  with  in  the  present  chapter,  and  it  will  be  treated  under 
the  two  heads  of  contracts  for  the  manufacture  of  goods  to  be 
supplied,  and  of  contracts  to  grow  and  supply  goods. 

1  The  question  presupposes  an  order 
for  goods  to  be  manufactured.  Where 
an  order  is  given  to  an  agent  of  a 
manufacturing  company  for  the  pur- 
chase of  goods  described  in  its  cata- 
logue and  supposed  to  be  in  stock, 
without  any  knowledge  that  they 
\vould  have  to  be  manufactured,  and 


the  order  is  revoked  before  any  no- 
tice of  its  acceptance  has  been  given, 
and  without  knowledge  that  the  com- 
pany was  manufacturing  the  goods, 
no  contract  either  of  manufacture  or 
sale  is  entered  into  between  the  par- 
ties. Harvey  v.  Duffey  (1893),  99  CaL 
401,  33  Pac.  R.  897. 


629 


§  754:.]  LAW    OF    SALE.  [BOOK   II. 

In  an  earlier  chapter  the  question  whether  these  contracts 
are  contracts  of  sale  within  the  provisions  of  the  statute  of 
frauds  has  been  considered;  but  the  question  now  involved  is 
obviously  a  different  one,  namely,  "  When  does  the  title  pass  ?  " 

I. 

"Where  Goods  are  to  be  Manufactured. 

§  754.  Title  ordinarily  does  not  pass  until  goods  are  com- 
pleted and  delivery  tendered. —  The  question  of  the  time  when 
the  title  will  pass  to  goods  which  have  been  ordered  to  be 
manufactured  is  involved  in  some  little  conflict  of  decision, 
though  the  decided  tendency  of  the  authorities  in  the  United 
States  is  clear.  Under  a  contract  for  the  manufacture  of  an 
article,  as  for  the  building  of  a  ship  or  the  construction  of  any 
other  chattel,  not  existing  in  specie  at  the  time  of  making  the 
contract,  it  is  the  general  rule  that  no  title  vests  in  the  pur- 
chaser during  the  progress  of  the  work,  nor  until  the  chattel  is 
finished  and  delivered,  or,  at  least,  is  ready  for  delivery,  and, 
by  tender  or  other  equivalent  act,  is  appropriated  to  the  buyer.1 
A  few  cases  hold  that  the  title  will  not  pass  until  there  has 
been,  on  the  part  of  the  buyer,  either  an  acceptance  of  the  chat- 
tel or  some  "  acts  or  words  respecting  it  from  which  an  accept- 
ance can  be  inferred."2  But,  by  the  weight  of  authority, 
acceptance  by  the  buyer  is  not  indispensable;  if  the  chattel  is 
produced  at  the  time,  and  of  the  kind  and  quality  specified,  and 
in  all  other  respects  in  compliance  with  the  order,  so  that  the 

1  Under  a  contract  for  the  sale  of  act  on  the  part  of  the  seller  identify- 
two  hundred  tons  of  No.  1  pig  iron,  ing  "any  particular  piles  as  belong- 
to  be  thereafter  delivered  by  a  man-  ing  to  the  buyer,  or  of  any  inspection 
ufacturer  who  is  engaged  in  the  or  acceptance  on  the  part  of  the 
manufacture  of  various  grades  and  buyer."  First  National  Bank  v.  Crow- 
producing  large  quantities  daily,  and  ley  (1872),  24  Mich.  492.  See  also 
all  the  iron  so  manufactured  is  piled.  Tufts  v.  Lawrence  (1890),  77  Tex.  526. 
as  fast  as  made,  upon  the  dock  in  2  Moody  v.  Brown  (1832),  34  Me.  107, 
separate  piles,  according  as  the  man-  56  Am.  Dec.  640;  Rider  v.  Kelley 
ufacturer  sees  fit  to  grade  it,  the  title  (1859),  32  Vt.  268,  76  Am.  Dec.  176: 
to  any  specific  portion  will  not  pass  Gammage  v.  Alexander  (1855),  14 
to  the  buyer  in  the  absence  of  any  Tex.  414. 

630 


CH.  V.]       CONTRACTS  —  GOODS  TO  BE  MANUFACTURED,  ETC.       [§  755. 


buyer  ought  to  accept  it,  the  title  will  pass  upon  a  tender  or 
offer  of  delivery  even  though  the  buyer  refuses  to  accept  it.1 


§  755.  Not  during  progress  of  work. —  That  no  title 

passes,  ordinarily,  during  the  progress  of  the  work  is  now  clear. 
This  rule  prevails  in  this  country,  contrary  to  the  later  but  in 

1  In  Shawhan  v.  Van  Nest  (1874),  25    and  have  recovered  from  the  defend- 


Ohio  St.  490,  18  Am.  R.  313,  Shawhan 
had  ordered  of  Van  Nest,  who  was  a 
carriage  maker,  a  two-seated  wagon 
to  be  built  by  Van  Nest  from  his  own 
materials,  in  accordance  with  Shaw- 
han's  directions,  for  a  certain  price. 
Van  Nest  in  all  respects  complied 
with  his  contract  and  tendered  the 
wagon  at  his  shop  to  Shawhan,  and 
requested  him  to  accept  and  pay  for 
it,  but  Shawhan  refused  to  do  so. 
The  action  was  for  the  price,  and 
Van  Nest  was  held  to  be  entitled  to 
recover.  Said  the  court:  "When  the 
plaintiff  below  had  completed  and 
tendered  the  carriage  in  strict  per- 
formance of  the  contract  on  his  part, 
if  the  defendant  below  had  accepted 
it,  as  he  agreed  to  do,  there  is  no 
question  but  that  he  would  have 
been  liable  to  pay  the  full  contract 
price  for  it,  and  he  cannot  be  per- 
mitted to  place  the  plaintiff  in  a 
worse  condition  by  breaking  than  by 
performing  the  contract  according 
to  its  terms  on  his  part.  When  plaint- 
iff had  completed  and  tendered  the 
carriage  in  full  performance  of  the 
contract  on  his  part,  and  the  defend- 
ant refused  to  accept  it,  he  had  the 
right  to  keep  it  at  the  defendant's 
risk,  using  reasonable  diligence  to 
preserve  it,  and  recover  the  contract 
price,  with  interest,  as  damages  for 
the  breach  of  the  contract  by  the  de- 
fendant. Or,  at  his  election,  he  could 
have  sold  tbo  carriage  for  what  it 
would  have  brought*  at  a  fair  sale, 


ant  the  difference  between  the  con- 
tract price  and  what  it  sold  for." 
Bement  v.  Smith,  15  Wend.  (N.  Y.) 
493,  is  to  same  effect;  and  so  are- 
Gordon  v.  Norris,  49  N.  H.  376;  Mo- 
In  tyre  v.  Kline,  30  Miss.  361,  64  Am. 
Dec.  163  (in  this  last  case  it  is  said 
that  acceptance  by  the  buyer  may 
be  implied  from  the  fact  that  notice 
of  the  completion  of  the  work  was 
given  to  him  and  that  he  made  no 
objection  to  it);  Ballentine  v.  Robin- 
son, 46  Pa.  St.  177.  See  also  Central 
Lith.  &  Eng.  Co.  v.  Moore  (1889),  75 
Wis.  170,  43  N.  W.  R.  1124,  6  L.  R.  A. 
788,  17  Am.  St.  R.  186. 

In  Goddard  v.  Binney  (1874),  115 
Mass.  450,  15  Am.  R.  112.  defendant 
ordered  a  buggy  to  be  built  for  him 
by  the  plaintiff  according  to  certain 
directions,  and  to  be  marked  with 
his  monogram.  Before  the  buggy 
was  entirely  completed,  defendant 
called  on  plaintiff  and  asked  when  it 
would  be  done.  Plaintiff  inquired 
whether  he  still  wanted  it,  saying  if 
he  did  not  want  it  another  person 
did.  Defendant  replied  that  he 
wanted  it.  Plaintiff  finished  the 
buggy  according  to  directions,  and 
sent  defendant  a  bill  for  it  by  a 
clerk,  to  whom  defendant  said  he 
would  see  the  plaintiff  soon;  on  a 
subsequent  request  by  the  same  clerk 
for  payment  defendant  replied  that 
he  would  pay  it  soon  and  would  see 
the  plaintiff,  and  upon  a  third  call 
he  directed  the  clerk  to  tell  plaintiff 


631 


755.] 


LAW    OF    SALE. 


[BOOK   II. 


conformity  with  the  early  English  rule,1  notwithstanding  that, 
by  the  terms  of  the  contract,  the  purchaser  was  to  pay  and  has 
paid  a  portion  of  the  price  in  instalments  as  the  work  pro- 


tliat  he  would  come  and  see  him 
right  away.  Soon  afterwards  the 
buggy  was  burned  without  plaintiff's 
fault.  Held,  that  the  general  owner- 
ship had  vested  in  defendant,  who 
must  bear  £he  loss.  Followed  in 
Moore  v.  Perrott  (1891),  2  Wash.  1,  25 
Pac  R.  906. 

In  Whitcomb  v.  Whitney  (1872),  24 
Mich.  486,  there  was  a  contract  in 
March  for  the  sale  of  all  the  lumber 
of  certain  grades  which  Whitcomb 
should  make  during  that  season, 
"lumber  to  be  delivered  on  rail  of 
vessel  when  lumber  is  ready  to  ship 
or  when  vessel  is  ready  to  send  for  it.;' 
Whitney  advanced  money  on  the 
contract  at  various  times  and  re- 
ceived one  cargo  of  lumber.  In  Sep- 
tember Whitcomb  wrote  to  Whitney 
that  the  lumber  was  all  cut,  ready 
to  ship,  and  the  sooner  a  vessel  was 
sent  the  better  he  would  like  it.  On 
receipt  of  this  letter  Whitney  sent 
an  inspector  who  inspected  and  ap- 
proved about  sixty-four  thousand 
feet,  acting  for  both  parties  in  so 
doing.  As  fast  as  it  was  inspected 
the  lumber  was  hauled  to  the  dock 
ready  for  the  vessel  when  it  should 
arrive.  The  inspection  was  com- 
pleted on  October  6th,  and  Wlritney 
was  notified  of  that  fact  on  October 
1 1th.  On  October  9th,  however,  the 
lumber  was  destroyed  by  accidental 
fire.  In  an  action  for  the  price  it 
was  held  that  title  passed  when  the 
lumber  was  inspected  and  put  on 
the  dock  ready  for  delivery,  and  that 
Whitney  was  liable  for  the  price. 

In  Fordice  v.  Gibson,  129  lnd.  7,  28 
N.  E.  R.  303,  the  court  states  the  rule 
to  be  that  "ordinarily  no  title  passes 


until  the  thing  is  completely  done 
and  notice  given  to  the  vendee,  or 
some  act  done  by  the  vendor  desig- 
nating it  as  the  article  sold,  either 
by  setting  it  apart,  marking  it,  or 
some  other  similar  act,"  citing  First 
Nat.  Bank  v.  Crowley,  24  Mich.  492; 
Ballentine  v.  Robinson.  46  Pa.  St.  177; 
Moline  Scale  Co.  v.  Beed,  52  Iovwa, 
307. 

Where  the  goods  were  to  be  man- 
ufactured and  delivered  upon  the 
dock  in  New  York  as  the  buyer 
should  call  for  them,  and  he  refused 
to  take  certain  goods  so  manufact- 
ured, the  price  may  be  recovered 
without  proof  of  delivery  or  tender. 
Atkinson  v.  Truesdell  (1891),  127  N.  Y. 
230,  27  N.  E.  R.  844. 

i  In  Woods  v.  Russell  (1822),  5  B.  & 
Aid.  (Eng.)  942,  a  ship-builder  had 
contracted  to  build  a  ship  for  the 
defendant  to  be  completed  by  a  given 
date,  and  the  defendant  was  to  pay 
for  her  in  four  instalments,  two  dur- 
ing construction  and  two  when  the 
ship  was  launched.  Before  the  ship 
was  finished,  the  defendant,  with 
the  builder's  privity,  had  had  the 
ship  measured  that  he  might  get  her 
registered  in  his  own  name,  the  ship- 
builder signing  the  necessary  certifi- 
cate, and  had  appointed  a  master 
who  superintended  the  construction, 
had  advertised  her  for  a  charter  and 
had  chartered  her  for  a  voyage.  The 
defendant  had  also  paid  the  third 
instalment,  but  before  completion 
the  ship-builder  went  into  bank- 
ruptcy and  the  defendant  thereupon 
took  possession  of  the  ship  in  her  un- 
finished condition.  The  assignees  of 
the  bankrupt  sued  in  trover,  but  it 


632 


CH.  V.]       CONTRACTS  —  GOODS  TO   BE   MANUFACTURED,  ETC.       [§  755. 


gressed.  It  also  prevails  notwithstanding  the  fact  that  the 
purchaser  has  furnished  a  part  of  the  materials,  and,  by  the 
weight  of  authority,  it  prevails  though  the  purchaser  not  only 


was  held  that  the  title  had  passed, 
the  court  holding  that  the  act  of  the 
builder  in  signing  the  certificate  to 
enable  defendant  to  register  the 
ship  in  his  ow.i  name  was  equivalent 
to  a  consent  that  the  property  should 
be  in  defendant  from  that  time. 

In  Clarke  v.  Spence  (1836),  4  Ad.  & 
El.  (Eng.)  448,  under  a  substantially 
similar  contract,  the  plaintiff  had 
contracted  for  a  vessel  to  be  paid 
for  in  instalments  and  to  be  con- 
structed under  the  supervision  of 
his  agent.  When  the  ship  was  par- 
tially completed  and  after  several 
instalments  had  been  paid,  the 
builder  became  bankrupt,  and  the 
defendants  were  his  assignees.  The 
court  held  that  the  title  had  passed 
upon  the  ground  that  the  provision 
for  payment  in  instalments  was 
equivalent  to  a  declaration  of  an  in- 
tention that,  upon  payment  of  the 
first  instalment,  the  title  should 
pass  to  the  purchaser. 

In  Anglo-Egyptian  Nav.  Co.  v. 
Rennie,  L.  R.  10  C.  P.  271,  it  is  said: 
"  The  case  of  Laidler  v.  Burlinson,  2 
M.  &  W.  602,  shows  how  strictly 
confined  to  that  simple  state  of 
things  the  doctrine  of  Clarke  v. 
Spence  is  held  to  be." 

In  Wood  v.  Bell  (1856),  5  El.  &  Bl. 
(Eng.)  772;  s.  c,  6  id.  355,  under  a 
like  contract,  the  plaintiff  had  paid 
several  instalments;  had  had  the 
work  superintended  by  his  own 
agent;  had  had  his  name  punched 
on  a  plate  riveted  to  the  keel  of  the 
ship,  and,  in  discussions  concerning 
the  execution  of  an  assignment  of 
the  ship  to  the  plaintiff,  the  builder 
had  admitted  that  the  ship  was  the 


property  of  the  plaintiff,  though  he 
objected  to  the  execution  of  the  as- 
signment. After  this,  and  before 
the  completion  of  the  ship,  the 
builder  became  bankrupt.  Held, 
that  the  title  had  passed. 

In  the  United  States,  Woods  v. 
Russell  and  Clarke  v.  Spence  have  not 
been  generally  approved. 

In  Andrews  v.  Durant  (1854),  11 
N.  Y.  35,  62  Am.  Dec.  55,  a  contract 
had  been  made  for  the  building  of  a 
ship,  under  the  inspection  of  the  pur- 
chasers' superintendent,  to  be  paid 
for  in  instalments.  After  three  in- 
stalments had  been  paid,  but  before 
the  ship  was  completed,  the  build- 
ers became  insolvent  and  the  ship 
was  seized  on  execution  for  theif 
debts.  The  purchasers  replevied  her, 
completed  her  and  treated  her  as 
their  own.  In  the  meantime  the 
builders  made  a  general  assignment 
for  the  benefit  of  creditors,  and  the 
assignees  brought  an  action  of  tro- 
ver to  establish  their  claim  of  owner- 
ship. It  was  held,  in  accordance 
with  the  rule  stated  in  the  text,  that 
the  title  had  not  passed  to  the  pur- 
chasers and  Clarke  v.  Spence  and 
Woods  v.  Russell  were  disapproved, 
the  court,  per  Denio,  J.,  saying  "  that 
the  modern  English  rule  is  not 
founded  upon  sufficient  reasons  and 
that  it  ought  not  to  be  followed." 
See  also  Low  v.  Austin,  20  N.  Y.  181; 
People  v.  Commissioners,  58  N.  Y. 
242;  Seymour  v.  Montgomery,  1 
Keyes  (N.  Y),  463:  Wright  v.  0"Brien, 
5  Daly  (N.  Y.),  54;  Comfort  v.  Kier- 
sted,  26  Barb.  (N.  Y.)  472;  Happy  v. 
Mosher,  47  Barb.  501;  Halterline  v. 
Rice,    62    Barb.    593;    Dyckman    v. 


633 


§  755.] 


LAW    OF    SALE. 


[BOOK   II. 


paid  the  price  in  instalments  as  the  work  progressed,  but  also, 
in  person  or  by  his  agent,  superintended  the  work  of  construc- 
tion. 


Valiente,  43   Barb.  131;  In  re  Non- 
Magnetic  Watch  Co.,  89  Hun,  196. 

The  ruling  in  Andrews  v.  Durant 
was  approved  and  followed  under 
substantially  similar  circumstances 
in  Hall  v.  Green  (1858),  1  Houst.  (Del.) 
546,  71  Am.  Dec.  96;  Elliott  v.  Ed- 
wards (1871),  35  N.  J.  L.  265;  West 
Jersey  R.  Co.  v.  Trenton  Car  Works 
(1866),  32  N.  J.  L.  517;  Shaw  v.  Smith 
(1880),  48  Conn.  306,  40  Am.  R.  170; 
Clarkson  v.  Stevens  (1882),  106  U.  S. 
505;  The  Poconoket,  67  Fed.  R.  262. 
See  also  Crosby  v.  Delaware  &  Hud. 
Can.  Co.  (1890),  119  N.  Y.  334,  23  N. 
E.  R.  736. 

In  Merritt  v.  Johnson  (1811),  7 
Johns.  (N.  Y.)  473,  5  Am.  Dec.  289,  it 
appeared  that  A  contracted  with  B 
to  build  a  vessel  for  the  latter,  the 
former  to  furnish  the  timber  requi- 
site to  complete  the  frame,  and  the 
latter  to  advance  the  money  and  fur- 
nish materials  for  the  joiners'  work, 
and  the  vessel  while  standing  on 
land  hired  by  A,  and  in  an  unfin- 
ished condition,  was  seized  on  an 
execution  against  A  and  sold  to  C, 
who  completed  the  vessel  and  sold 
her  to  D.  In  an  action  of  trover  by 
B's  assignee  against  D,  it  was  held 
that  the  property  was  in  D,  and  that 
B  had  no  title  until  completion  and 
delivery. 

In  McConihe  v.  Railroad  Co.  (1859), 
20  N.  Y.  495,  75  Am.  Dec.  420,  it  ap- 
peared that  plaintiff's  assignor  had 
made  a  contract  with  the  defendant 
to  build  cars  for  it,  the  defendant  to 
furnish  the  iron  boxes  needed  for 
the  construction.  The  defendant, 
though  frequently  requested,  did  not 
supply  the  boxes  within  the  time 


agreed,  and  the  builder  did  all  he 
could  without  them,  but  before  com- 
pletion and  delivery  the  cars  were 
burned  without  his  fault.  Held,  on 
the  strength  of  Andrews  v.  Durant. 
supra,  that  the  title  had  not  passed 
to  the  defendant. 

In  Shaw  v.  Smith  (1880),  48  Conn. 
306,  40  Am.  R.  170,  the  contract  was 
for  the  manufacture  of  certain  tools 
for  plaintiffs  for  a  price  to  be  paid  in 
instalments.    Before  completion,  but 
upon  a  fraudulent  representation  of 
full  completion,  the  builder  secured 
the  last  instalment  without  delivery 
of  any  of  them,  and  then  made  an 
assignment  for  the  benefit  of  credit- 
ors.    Held,  that  as  against  creditors 
no  title  had  passed,  and  the  court  also 
said  that  no  title  had  passed  as  be- 
tween   plaintiffs    and    the    builder. 
McConihe  v.  Railroad  Co.,  and  An- 
drews v.  Durant,  supra,  were  cited 
with  approval,  as  was  also  Williams 
v.  Jackman,   16    Gray  (Mass.),  514, 
where  Bigelow,  C.  J.,  said:  "Under 
a  contract  for  supplying  labor  and 
materials  and  making  a  chattel,  no 
property  passes  to  the  vendee  till  the 
chattel  is  completed  and  delivered, 
or  ready  to  be  delivered.    This  is  the 
general  rule  of  law.     It  must  prevail 
in  all  cases,  unless  a  contrary  intent 
is  expressed  or  clearly  implied  from 
the  terms  of  the  contract."    To  like 
effect,  Wright  v.  Tetlow,  99  Mass. 
397. 

In  Clarkson  v.  Stevens  (1882),  106 
U.  S.  505,  the  court,  through  Mr.  Jus- 
tice Matthews,  review  the  cases  at 
some  length,  and  decline  to  follow 
the  English  rule,  saying:  "  The  courts 
of  this  country  have  not  adopted  any 


634 


CH.  V.]      CONTRACTS — GOODS  TO  BE  MANUFACTURED,  ETC.      [§§  756-7. 


|  756,  , Especially  if  goods  yet  to  be  separated  from 

larger  mass. —  A  fortiori,  will  not  the  title  pass  where,  after 
manufacture,  the  goods  are  yet  to  be  separated  and  set  off 
from  a  larger  mass.1 

§  757.  Same  rule  where  goods  to  be  manufactured  and 
shipped  to  buyer.—"  In  the  case  of  goods  to  be  manufactured,"  it 
is  said  in  a  late  case,2  "  the  seller,  as  he  has  to  tender  them,  gener- 


arbitrary  rule  of  construction  as  con- 
trolling such  agreements,  but  con- 
sider the  question  of  intent  open  in 
every  case  to  be  determined  upon 
the  terms  of  the  contract  and  the 
circumstances  attending  the  trans- 
action. 1  Parsons,  Shipping  and 
Admiralty,  63.  And  such  seems  to 
us  to  be  the  true  principle.  Accord- 
ingly we  are  of  opinion  that  the  fact 
that  advances  were  made  out  of  the 
purchase-money,  according  to  the 
contract,  for  the  cost  of  the  work  as 
it  progressed,  and  that  the  govern- 
ment was  authorized  to  require  the 
presence  of  an  agent  to  join  in  certi- 
fying to  the  accounts,  are  not  con- 
clusive evidence  of  an  intent  that 
the  property  in  the  ship  should  vest 
in  the  United  States  prior  to  final 
delivery."  See  also  Scull  v.  Shake- 
spear  (1874),  75  Pa.  St.  297;  In  re 
Derbyshire's  Estate,  Lang's  Appeal 
(1876),  81  Pa.  St.  18;  Chambers  v. 
Board  of  Education  (1875),  60  Mo. 
370  (quoted  from  in  note  to  the  fol- 
lowing section);  Wollensak  v.  Briggs 
(1887),  119  I1L  453,  10  N.  E.  R.  23. 

But  in  Sandford  v.  Wiggins  Ferry 
Co.  (1867),  27  Ind.  522,  the  court  ap- 
prove the  English  cases  as  constitut- 
ing the  common  law,  and  hold  that 
the  parties  must  be  presumed  to  have 
dealt  with  them  in  view;  and  Clif- 
ford, J.,  in  his  dissenting  opinion  in 
Calais  Steamboat  Co.  v.  Van  Pelt 
.  (1862),  2  Black  (U.  S.),  380,  approves 


them.  So  also  Butterworth  v.  Mc- 
Kinly,  11  Humph.  (Tenn.)  206;  Moody 
v.  Brown,  34  Me.  107,  56  Am.  Dec. 
6-10. 

iNew  England  Dressed  Meat  & 
Wool  Co.  v.  Worsted  Co.  (1896),  165 
Mass.  328,  43  N.  E.  R.  112,  52  Am.  St. 
R.  516. 

2  Smith  v.  Edwards  (1892),  156  Mass. 
221,  30  N.-E.  R.  1017.  Here  shoe  deal- 
ers in  Ohio  ordered  of  the  manu- 
facturers in  Massachusetts  a  quant  it y 
of  calf  and  buff  shoes  according  to  a 
sample.  The  shoes  were  manufact- 
ured in  accordance  with  the  sample 
and  shipped  to  the  buyers  by  railroad. 
The  buyers  accepted  the  buff  shoes 
but  rejected  the  calf  shoes,  and 
shipped  them  back  by  the  same  car- 
rier to  the  makers.  The  latter  re- 
fused to  accept  them,  sued  the  buyers 
for  the  price,  and  garnished  the  rail- 
road company.  Held,  that  the  title  to 
the  shoes  had  passed  to  the  buyers.  To 
like  effect:  Kelsea  v.  Ramsey  &  Gore 
Mfg.  Co.  (1893),  55  N.  J.  L.  320,  26  Atl. 
R.  907,  22  L.  R.  A.  415;  Pacific  Iron 
Works  v.  Long  Island  R.  Co.  (1875), 
62  N.  Y.  272;  Johnson  v.  Hibbard,  29 
Oreg.  184,  44  Pac.  R.  287,  54  Am.  St. 
R.  787. 

"Of  course  the  title  to  the  shoes 
could  not  be  vested  in  the  defend- 
ants," said  the  court  in  Smith  v.  Ed- 
wards, supra,  "  without  their  consent. 
But  in  the  present  state  of  the  law 
it  does  not  need  argument  to  show 


635 


§  758.]  LAW  OF  SALE.  [BOOR  II. 

ally  has  the  right  to  appropriate  the  goods  to  the  contract  so  far 
that,  if  he  tenders  goods  conformable  to  it,  the  buyer's  refusal 
to  accept  them  is  a  breach.  The  buyer  cannot  say  that  he  would 
have  accepted  some  other  goods  had  they  been  tendered.  When 
goods  are  to  be  manufactured  and  forwarded  by  a  carrier  to  a 
buyer  at  a  distance,  the  seller's  delivery  of  such  goods  to  the 
carrier  as  bailee  for  the  purchaser  passes  the  title.  The  seller 
cannot  forward  them  until  they  are  specified.  The  delivery  is 
an  overt  dealing  with  the  goods  as  those  to  which  the  contract 
applies,  and  puts  them  into  a  position  adverse  to  the  seller. 
Although  not  strictly  a  delivery,  it  is  an  act  having  the  legal 
effect  of  a  true  delivery,  which  in  common  legal  language  it  is 
said  to  be.1  The  act  is  required  of  the  seller  by  the  terms  of 
the  contract,  and  thus  is  assented  to  in  advance  by  the  buyer, 
on  the  condition  that,  as  supposed,  the  goods  answer  the  re- 
quirements of  the  contract.  Therefore  it  is  a  binding  appropria- 
tion of  the  goods  to  the  contract  and  passes  the  title." 2 

§  758.  But  goods  must  correspond  with  the  order.— 

But  here,  as  in  other  cases  of  similar  appropriation,  the  goods 
must  be  of  the  kind  and  in  the  amount  ordered ;  for  if  the  seller 
sends  more  goods  than  were  ordered  or  different  goods  than 
those  specified,  the  title  will  not  pass  by  the  shipment.3 

that  a  contract  can  be  made  in  such  I  Citing  Orcutt  v.  Nelson,  1  Gray, 

a  way  as  subsequently  to  pass  the  536,   543;   Merchant  v.   Chapman,  4 

title,  as  between  the  parties,  to  goods  Allen,  362,  364;  Kline  v.  Baker,  99 

unascertained  at  the  time  when  the  Mass.  253,  234;  Hallgarten  v.  Oldham, 

contract  is  made,  without  a  subse-  135  Mass.  1,  9. 

quent  acceptance  by  the  buyer,  if  the  '-'Citing   Putnam   v.   Tillotson.    13 

contract  commits  the  buyer  in  ad-  Mete.  517,   520;    Merchant  v.  Chap- 

vance  to  the  acceptance  of  goods  de-  man,  snpra;  Odell  v.  Boston  &  Maine 

termined  by  other  marks.   Middlesex  R.  Co.,  109  Mass.  50 ;  Wigton  v.  Bowley, 

Co.  v.  Osgood,  4  Gray,  447,  449;  Nich-  130  Mass.  252,  254;  Fragano  v.  Long, 

ols  v.  Morse,  100  Mass.  523;  Brewer  4  B.  &  C.  219;  Wait  v.  Baker,  2  Exch. 

v.  Housatonic  R.  Co.,  104  Mass.  593.  1,  7. 

595;  Rodman  v.  Guilford,  112  Mass.  3  New  England  Dressed  M.  &  W. 

405,  407;  Goddard  v.  Binney,  115  Mass.  Co.  v.  Standard  Worsted  Co.  (1896), 

450:  Blanchard  v.  Cooke,  144  Mass.  165  Mass.  328,  43  N.  E.  R  112,  52  Am. 

207,  227;  Aldridge  v.  Johnson,  7  El.  St.  R  516. 
&  Bl.  885,  899." 


CH.  V.]       CONTRACTS  —  GOODS  TO  BE    MANUFACTURED,  ETC.       [§   759, 


§  759.  But  title  may  pass  sooner  if  such  appears  to  have 
been  intention. —  The  criterion  here,  however,  as  in  other 
cases,  is  the  intention  of  the  parties,  and  the  general  rule  yields 
to  an  intention,  clearly  apparent  from  a  view  of  the  whole  con- 
tract, that  the  title  should  pass  at  some  earlier  period.  It  is, 
of  course,  clear,  as  is  said  by  the  court  in  a  leading  English 
case,  that  a  man  may  purchase  a  ship  or  other  article  as  it  is 
in  progress  of  construction,  and  the  title  will  be  held  to  have 
then  passed  if  that  clearly  appears  to  have  been  the  intention 
of  the  parties.1  But  such  an  intention  is  not  decisively  shown 
by  the  mere  fact  of  payment  in  instalments,  or  of  superin- 


1  The  general  rule  and  the  excep- 
tion to  it  are  well  stated  by  Daly,  C.  J., 
in  Wright  v.  O'Brien,  5  Daly  (N.  Y.), 
56.  as  follows:  "  Where  a  party  orders 
a  thing  to  be  made,  such  as  a  vessel 
or  any  other  article,  it  does  not  be- 
come his  property  until  it  is  deliv- 
ered into  his  possession,  even  though 
he  may  have  paid  for  it  in  advance 
or  furnished  a  large  portion  of  the 
materials  of  which  it  is  constructed; 
but  during  its  production  it  is,  and 
after  it  is  finished  it  continues  to  be, 
up  to  its  delivery,  the  properly  of 
the  person  who  produced  it,  and  may 
be  levied  upon  and  sold  under  ex- 
ecution against  bim.  Mucklow  v. 
Mangles,  1  Taunt.  318;  Merritt  v. 
Johnson,  7  Johns.  (N.  Y.)  173;  John- 
son v.  Hunt,  11  Wend.  (N.  Y.)  139; 
Andrews  v.  Durant,  11  N.  Y.  35.  But, 
whilst  this  is  the  rule,  it  is  equally 
well  settled  that  it  is  competent  for 
the  parties  to  agree  that  the  thing  to 
be  produced  from  the  beginning,  or 
at  any  stage  of  its  production,  is  to 
be  the  property  of  the  person  who 
ordered  it,  and  that  where  a  mutual 
assent  to  that  effect  is  shown  by  un- 
equivocal acts  or  declarations,  the 
title  passes  before  delivery.  Woods 
v.  Russell,  5  B.  &  Aid.  942;  Rohde  v. 


Thwaites,  0  B.  &  C.  388;  Atkinson  v. 
Bell.  8  id.  277;  Jackson  v.  Anderson, 
4  Wend.  (N.  Y.)  474;  Whitehouse 
v.  Frost,  12  East,  614;  Kiniberly  v. 
Patchin,  19  N.  Y.  333;  Olyphant  v. 
Baker,  5  Denio  (N.  Y.),  383;  Andrews 
v.  Durant,  11  N.  Y.  35." 

In  the  case  quoted  from  (Wright 
v.  O'Brien,  5  Daly,  54),  it  appeared 
that  plaintiff  had  employed  A,  an 
artist,  to  make  a  portrait  from  a 
photograph  of  a  deceased  child, 
and  on  making  the  contract  had 
made  him  a  payment  on  account. 
After  the  portrait  was  partially  com- 
pleted plaintiff  made  an  arrange- 
ment with  A  (who  desired  to  go 
abroad)  by  which  he  agreed  to  pay 
him  a  certain  sum  for  the  work  al- 
ready done,  and  A  agreed  to  deliver 
the  portrait  to  B  to  be  finished.  Held, 
that  the  effect  of  this  last  agreement 
was  to  vest  the  title  to  the  portrait 
in  the  plaintiff,  so  that  it  could  not 
thereafter  be  seized  by  the  creditors 
of  A.  Robinson,  J.,  expressed  the 
opinion  that  the  ownership  of  a  pic- 
ture painted  to  order  is  always  in 
the  person  who  gives  the  ordei-,  and 
that  the  artist  has  only  a  lien  upon 
it  for  his  services. 


637 


:eo.] 


LAW    OF    SALE. 


[BOOK    II. 


tendence  by  the  purchaser,  though  these  facts  are  significant, 
and  in  connection  with  other  facts  may  be  conclusive.1 


760. 


Even  without  actual  delivery. —  So  it  is  clear 


that,  if  such  appears  to  have  been  the  intention  of  the  parties, 
the  title  may  vest  even  though  there  has  been  no  formal  ten- 
der of  delivery  or  though  the  goods  still  remain  in  the  maker's 
possession.  If  that  has  been  done  which,  according  to  the  in- 
tention of  the  parties,  was  to  mark  the  transfer  of  the  title,  it 
is  enough.2 


1  In  the  case  of  Briggs  v.  A  Light 
Boat,  7  Allen  (Mass.),  287,  Bigelow, 
C.  J.,  says:  "The  general  rule  of  law- 
is  well  settled  and  familiar  that 
under  a  contract  for  building  a  ship 
or  making  any  other  chattel,  not 
subsisting  in  specie  at  the  time  of 
making  the  contract,  no  property 
vests  in  the  purchaser  during  the 
progress  of  the  work,  nor  until  the 
vessel  or  other  chattel  is  finished  and 
ready  for  delivery.  To  this  rule  there 
are  exceptions,  founded  for  the  most 
part  on  express  stipulations  in  con- 
tracts, by  which  the  property  is  held 
to  vest  in  the  purchaser  from  time 
to  time  as  the  work  goes  on.  It  is 
doubtless  true  that  a  particular 
agreement  in  a  contract  concerning 
the  mode  or  time  of  payment  of  the 
purchase-money,  or  providing  for  the 
appointment  of  a  superintendent  of 
the  work,  may  have  an  important 
bearing  in  determining  the  question 
whether  the  property  passes  to  the 
purchaser  before  the  completion  of 
the  chattel.  It  is,  however,  errone- 
ous to  say,  as  is  sometimes  stated  by 
text-writers,  that  an  agreement  to 
pay  the  purchase-money  in  instal- 
ments, as  certain  stages  of  the  work 
are  completed,  or  a  stipulation  for 
the  employment  of  a  superintendent 
by  the  purchaser  to   overlook  the 


work  and  see  that  it  is  done  accord- 
ing to  the  tenor  of  the  contract,  will, 
of  itself,  operate  to  vest  the  title  in 
the  person  for  whom  the  chattel  is 
intended.  Such  stipulations  may  be 
very  significant  as  indicating  the  in- 
tention of  the  parties,  but  they  are 
not  in  all  cases  decisive.  Both  of 
them  may  co-exist  in  a  particular 
case,  and  yet  the  property  may  re- 
main in  the  builder  or  manufacturer. 
Even  in  England,  where  the  cases  go 
the  farthest  in  holding  that  property 
in  a  chattel  in  the  course  of  con- 
struction passes  to  and  vests  in  the 
purchaser,  these  stipulations  are  not 
always  deemed  to  be  conclusive  of 
title  in  him.  It  is  a  question  of  intent, 
arising  on  the  interpretation  of  the 
entire  contract  in  each  case.  If,  tak- 
ing all  the  stipulations  together,  it  is 
clear  that  the  parties  intended  that 
the  property  should  vest  in  the  pur- 
chaser during  the  progress  of  the 
work  and  before  its  completion,  ef- 
fect will  be  given  to  such  intention 
and  the  property  will  be  held  to  pass 
accordingly;  but,  on  the  other  hand, 
it  will  not  be  deemed  to  have  passed 
out  of  the  builder  unless  such  intent 
is  clearly  manifested,  but  the  general 
rule  of  law  will  prevail." 

2  Thus,  in  Brewer  v.  Michigan  Salt 
Association,  47  Mich.  526,  11  N.  W. 


638 


CH.  V.]       CONTRACTS  —  GOODS  TO  BE  MANUFACTURED,  ETC.       [§  761. 


"What  their  intention  was,  when  not  made  clear  by  the  terms 
of  the  contract,  becomes  a  question  of  fact  for  the  jury  to  de- 
termine.1 

§  761.  When  title  passes  to  article  intended  for,  but  not 
made  part  of,  the  principal  article  —  Lumber  for  building. 

Closely  connected  with  the  subject  of  the  preceding  sections  is 


R.  370,  it  appeared  that  the  defend- 
ant had  made  a  contract  with 
Brewer,  a  manufacturer  of  salt,  to 
take  all  the  salt  he  manufactured 
and  to  make  a  specified  advance  on 
all  received.  The  salt  was  to  become 
the  property  of  the  defendant  as 
soon  as  inspected  and  branded,  but 
plaintiff  was  to  furnish  storage  for 
it  and  be  "  responsible  for  the  same  " 
until  it  was  delivered  at  his  expense 
alongside  such  vessel,  car  or  lighter 
as  the  defendant  might  send  for  it. 
A  quantity  of  salt,  after  being  in- 
spected and  branded,  but  while  still 
remaining  on  plaintiff's  premises, 
was  destroyed  by  accidental  fire. 
Held,  that  the  title  had  passed,  and 
that  the  clause  making  him  "re- 
sponsible "  made  him  responsible  as 
bailee  only.  See  also  Jenkinson  v. 
Monroe,  6l"Mich.  454,  28  N.  W.  R.  663. 
i  In  Weld  v.  Came,  98  Mass.  152.  it 
appeared  that  defendants  had  con- 
tracted to  manufacture  five  billiard 
tables  for  plaintiffs  which  they  in- 
tended to  ship  to  the  East  Indies. 
The  tables  were  to  be  finished  within 
a  specified  time,  and  were,  by  the 
makers,  to  be  delivered  on  the  wharf, 
packed  in  cases  ready  for  shipment, 
at  such  vessel  as  plaintiffs  might 
have.  On  a  certain  date  plaintiffs 
notified  defendants  that  they  had  a 
ship  about  to  sail,  and  would  take 
the  tables  if  they  were  ready.  Four 
wrere  delivered  and  paid  for,  but  the 
fifth    was    not    completed.     Subse- 


quently plaintiffs  were  notified  that 
the  fifth  table  was  finished,  boxed 
up  and  ready  for  shipment,  and 
plaintiffs,  without  seeing  or  receiving 
the  table,  paid  for  it.  It  remained 
boxed  up  and  set  aside  in  defend- 
ants' store-room,  and  they  suggested 
to  plaintiffs  that  it  could  be  sold  to 
some  one  else,  but  plaintiffs  declined 
to  have  it  sold,  saying  that  they  in- 
tended to  ship  it.  "While  remaining 
in  this  condition  the  table  was  de- 
stroyed by  accidental  fire,  and  this 
action  was  brought  to  recover  back 
the  price  paid  for  it.  The  trial  court 
directed  a  verdict  for  the  plaintiffs. 
Said  the  supreme  court:  "The  de- 
fendants were  to  transport  the  .prop- 
erty to  the  wharf,  and  this  is  a  cir- 
cumstance to  be  considered  by  a  jury 
as  tending  to  show  that  the  property 
was  not  delivered  [that  the  title  had 
not  passed?]  But  it  is  not  conclu- 
sive, and  the  other  circumstances  so 
far  explain  it  that  a  jury  would  be 
authorized  to  find  that  the  sale  was 
completed  by  the  arrangement  that 
the  defendants  should  store  it  till  a 
ship  should  be  ready  to  receive  it. 
There  was  nothing  to  be  done,  such 
as  weighing,  measuring,  identifying 
or  making  payment,  and  there  seems 
to  be  no  reason  for  holding  that  the 
defendants'  creditors  could  have  at- 
tached it,  or  that  the  plaintiffs  could 
not  have  demanded  it  at  the  shop. 
We  think,  therefore,  that  the  ques- 
tion whether  the  property  had  passed 


639 


761.] 


LAW  OF  SALE. 


[book  II. 


that  of  the  passing  of  title  to  things  intended  to  constitute  a 
part  of  the  principal  article,  as  the  rudder  of  a  ship  or  engines 
for  a  steamship,  but  not  yet  actually  made  a  part  of  it.  As  to 
such  articles,  the  English  courts,  while  adopting  a  more  liberal 
rule  than  our  courts  as  to  the  title  to  the  main  thing,  hold  that 
these  accessories  do  not  pass  to  the  purchaser  of  the  main  thing 
until  they  have  actually  been  affixed  to  or  made  a  part  of  it, 
but  having  been  once  affixed  they  become  a  part  of  the  main 
thing  though  temporarily  removed.1  Under  the  rule  prevail- 
ing in  the  United  States,  the  same  conclusion  would  follow 
a  fortiori? 


to  the  plaintiffs  should  have  been 
left  to  the  jury."  See  also  Kent  Iron 
Co.  v.  Norbeck,  150  Pa.  St.  559, 24  Atl. 
R.  737. 

i  See  Woods  v.  Russell,  5  B.  &  Aid. 
942;  Tripp  v.  Armitage,  4  M.  &  W. 
687;  Goss  v.  Quinton,  3  M.  &  G.  825; 
Wood  v.  Bell,  6  E.  &  B.  355.  In  the 
latter  case  the  question  was  as  to  the 
engines,  plates,  irons  and  planking 
designed  for  a  ship  and  in  course  of 
preparation  for  her,  but  not  yet  actu- 
ally put  in  place.  Said  the  chief 
justice:  "The  question  is,  What  is 
the  contract?  The  contract  is  for 
the  purchase  of  a  ship,  not  for  the 
purchase  of  everything  in  use  for  the 
making  of  the  ship.  I  agree  that 
those  things  which  have  been  fitted 
to  and  formed  part  of  the  ship  would 
pass,  even  though  at  the  moment 
they  were  not  attached  to  the  vessel. 
But  I  do  not  think  that  those  things 
which  had  merely  been  bought  for 
the  ship  and  intended  for  it  would 
pass  to  the  plaintiff.  Nothing  that 
has  not  gone  through  the  ordeal  of 
being  approved  as  part  of  the  ship 
passes,  in  my  opinion,  under  the  con- 
tract." 

2  Thus  in  Chambers  v.  Board  of 
Education  (1875),  60  Mo.  370,  a  con- 


tractor had  undertaken  to  build  a 
schoohhouse  for  the  defendant,  under 
the  supervision  of  the  latter's  archi- 
tect, and  the  work  was  to  be  paid  for  in 
instalments.  Upon  the  contractor's 
request,  the  defendant  had  advanced 
him  $3,000  to  buy  lumber  for  use  in 
the  building,  upon  the  parol  under- 
standing that  it  was  to  become  the 
property  of  defendant.  The  lumber 
was  brought  upon  the  lot,  but  before 
becoming  incorporated  in  the  build- 
ing was  transferred  by  the  con- 
tractor to  satisfy  a  debt  to  a  third 
person.  The  court  held  the  parol 
understanding  insufficient  to  trans- 
fer the  title,  and  the  question  there- 
upon arose  whether  the  title  to  the 
lumber  had  otherwise  passed  to  the 
defendant.  The  court  below  held 
that  it  had.  "  This  doctrine,"  said 
the  supreme  court,  "  was  based  on 
the  ground  that  a  superintendent 
was  appointed  by  the  orderer  (the 
defendant)  and  that  the  manufact- 
urer or  builder  was  to  be  paid  in  in- 
stalments as  the  work  progressed, 
and  that  in  such  cases,  where  the 
materials  were  inspected  and  al- 
lowed by  the  superintendent,  the 
title  to  them  at  once  passed  to  the 
purchaser  or  orderer.     But  the  gen- 


G40 


CH.  V.]       CONTRACTS  —  GOODS  TO   BE   MANUFACTURED,  ETC.       [§  762. 

§  762.  Articles  to  be  supplied  by  way  of  repairs  or 

alterations  to  another  chattel. —  Where  articles  are  to  be 
supplied  by  way  of  repairs  or  alterations  to  a  chattel,  the  Eng- 
lish courts  hold  that  the  title  does  not  pass  until  the  whole  of 


eral  law  is  otherwise,  as  the  cases  in 
New  York  and  Massachusetts,  and 
indeed  in  England  —  unless  we  ex- 
cept the  case  of  Woods  v.  Russell  (5 
B.  &  Aid.  942),— show;  and  there 
must  be  a  special  agreement  between 
the  contractor  and  his  employer  to 
transfer  the  property  so  bought  by 
the  contractor  to  his  employer;  and 
in  this  case  there  was  no  such  agree- 
ment, except  the  parol  one  hereto- 
fore considered.  Or  this  instruction 
may  have  been  based  on  the  assump- 
tion that  when  the  builder  put  the 
lumber  on  the  ground  of  defendant, 
with  the  intention  to  use  it  in  the 
building  he  was  to  erect  on  such 
ground,  this  alone  transferred  the 
title  in  the  materials  to  the  owner 
of  the  ground.  But  this  is  not  the 
law.  The  materials  belonged  to  the 
builder  and  were  at  his  risk  until 
actually  put  in  the  house.  The  fact 
that  the  builder  bought  them  with  a 
view  to  putting  them  in  the  defend- 
ant's house  did  not  change  their 
ownership,  nor  did  the  inspection  of 
the  superintendent  or  architect  have 
this  effect.  Johnson  v.  Hunt,  11 
Wend.  (N.  Y.)  135;  Mucklow  v.  Man- 
gles, 1  Taunt.  (Eng.)  319;  Merritt  v. 
Johnson,  7  Johns.  (N.  Y.)  473,  5  Am. 
Dec.  289." 

In  Ellis  v.  Bonner  (1891),  80  Tex. 
198, 15  S.  W.  R.  1045,  26  Am.  St.  R.  731, 
a  building  society  had  undertaken  to 
build  two  portable  houses  for  Bon- 
ner. The  material  for  the  houses  had 
been  delivered  upon  the  lot  and  Bon- 
ner had  paid  the  greater  part  of  the 
contract  price  when  Ellis  attached 


the  lumber  as  the  property  of  the 
building  company.  The  court  held 
that  the  rule  applicable  to  the  man- 
ufacture of  chattels  did  not  apply  to 
a  case  like  the  present;  that  it  was 
within  the  power  of  the  parties  by 
their  contract  to  determine  either 
that  the  title  should  vest  in  Bonner 
when  it  was  delivered  upon  the  lots, 
or  that  it  should  remain  in  the  build- 
ing company  until  the  houses  were 
completed;  that  the  contract  in  this 
respect  would  determine  whether  the 
lumber  was  subject  to  seizure  as  the 
property  of  the  building  company; 
that  if  the  contract  was  intended  to 
be  a  sale  of  the  material,  its  delivery 
upon  the  lot  would  be  sufficient  to 
pass  the  title  to  Bonner;  that  if  the 
contract  was  for  completed  houses, 
then  such  delivery  and  part  payment 
would  not  be  sufficient  to  pass  the 
title.  "  But  if,"  continued  the  court, 
"  under  a  proper  construction  of  the 
contract,  the  title  to  the  material  re- 
mained in  the  building  company  be- 
fore being  put  into  the  building,  and 
was  therefore  subject  to  levy  for  its 
debts,  it  does  not  follow  that  Bonner 
had  not  acquired  in  it  an  interest 
which  should  be  protected.  If  it  be 
conceded  that  the  title  to  the  mate- 
rial remained  in  the  building  com- 
pany, still  it  had  delivered  the  lum- 
ber to  Bonner,  and  received  money 
from  him  as  a  payment  upon  it  under 
circumstances  that  justified  him  in 
believing,  and  sufficient  to  at  least 
show  an  implied  contract,  that  the 
very  material  should  be  used  in  the 
construction  of  the  houses.    Under 


41 


641 


rf>3. 


LAW    OF    SALE. 


[book 


II. 


the  work  contracted  for  has  been  completed,  notwithstanding 
payment  has  been  made  in  instalments,  and  the  repairs  or  alter- 
ations have  been  constructed  under  the  supervision  of  the  pur- 
chaser.1 

II. 

Where  Goods  are  to  be  Grown. 

§  763.  Title  passes  when  chattel  is  grown  and  appropri- 
ated to  the  contract. —  A  contract  to  sell  and  deliver  a  chattel 
not  then  in  existence,  but  subsequently  to  be  grown  and  pro- 
duced, "  comes  by  analogy,"  said  the  court  in  Vermont,2 "  within 
the  class  of  contracts  for  the  manufacture  of  goods  and  for 
their  delivery  at  a  future  day.  In  such  cases  the  authorities 
have  abundantly  established  the  general  rule  that  the  article 
must  not  only  be  made  and  offered  to  the  vendee,  but  that  he 
must  accept  of  it,  or  it  must  be  set  apart  for  him  by  his  con- 
sent, before  the  title  to  it  will  vest  in  him;  and  although  the 

such  circumstances  the  building  as-  The  defendant  employed  other  par- 
sociation  would  not  have   been  al-    ties  to  make  the  repairs  and  used  the 


lowed  to  take  the  property  from 
Bonner's  possession  and  deprive  him 
of  it  as  a  security  for  the  money  paid 
by  him."  No  cases  or  statutes  are 
cited  by  the  court  as  authority  for  its 
holdings,  and  the  English  and  Amer- 
ican cases  are  not  referred  to. 

See  also  Johnson  v.  Hunt,  11  Wend. 
(N.  Y.)  135.  In  Abbott  v.  Blossom 
(1873),  66  Barb.  (N.  Y.)  353,  it  appeared 
that  G.,  a  carpenter,  agreed  with  the 
defendant  to  put  certain  repairs  upon 
the  house  of  the  latter.  G.  was  to 
furnish  the  lumber  required  and  de- 
fendant was  to  draw  it.  No  separate 
price  was  to  be  paid  for  the  lumber, 
but  the  work  and  materials  were  to 
be  paid  for  at  a  fixed  price  on  the 
completion  of  the  job.  G.  selected 
the  lumber  to  be  used  and  the  de- 
fendant drew  it  to  the  house.  G. 
failed  to  commence  work  upon  the 
job   and    abandoned  the    contract. 


lumber  in  making  them.  Held,  that 
the  lumber  did  not  become  the  prop- 
erty of  the  defendant,  there  having 
been  no  delivery  of  it  with  intent  to 
pass  the  title.  In  Hood  v.  Manhattan 
Ins.  Co.  (1854),  11  N.  Y.  532,  it  is  said: 
"  It  frequently  happens  that  one  man 
owns  the  keel  and  employs  another, 
the  ship-builder,  to  furnish  materials 
and  finish  the  ship.  Such  materials, 
though  completely  finished,  remain 
the  property  of  the  builder  until  they 
actually  become  a  part  of  the  struct- 
ure of  the  ship." 

!See  Anglo-Egyptian  Navigation 
Co.  v.  Rennie  (1875),  L.  R.  10  C.  P. 
271,  distinguishing  Clarke  v.  Spence, 
4  Ad.  &  E.  448;  Woods  v.  Russell,  5 
B.  &  Aid.  942;  Wood  v.  Bell,  5  E.  & 
B.  772;  s.  C,  6  id.  355. 

2  Rider  v.  Kelley  (1859),  32  Vt.  268, 
76  Am.  Dec.  176. 


642 


CH.  V.]      CONTRACTS — GOODS  TO  BE  MANUFACTURED,  ETC.      [§§  704-5. 

cases,  to  some  extent,  modify  this  general  rule,  as  where  the 
parties  agree  to  treat  the  article  as  constructively  delivered 
when  finished,  or  as  where  the  vendee  finds  the  materials  and 
superintends  or  specially  directs  in  the  process  of  manufacture, 
yet  we  find  nothing  to  make  this  case  an  exception." 

§  764.  .  The  contract  in  this  case  was  for  hops  to  be 

grown,  cured,  packed  and  inspected  in  Vermont,  and  the  ques- 
tion was  whether  a  tender  of  the  hops  would  operate  to  pass 
the  title.  Upon  this  question  it  was  said  :  "It  is  obvious  that 
the  parties  did  not  intend,  and  could  not  have  intended,  that  a 
mere  tender  of  the  hops  by  the  vendor  should  pass  the  title  in 
them  to  the  vendee  against  his  positive  refusal  to  accept  them. 
The  hops  were  to  be  raised  thereafter,  were  to  answer  the  spe- 
cial description  specified  in  the  contract,  and  were  to  be  of 
Vermont  inspection.  The  vendee  was  entitled  to  examine 
them,  and  use  his  judgment  in  determining  whether  they  came 
within  the  contract.  They  would  not  become  his  property 
against  his  consent;  although  if  he  wrongfully  refused  to  ac- 
cept them  he  would  be  liable  in  damages.  He  was  not  bound 
by  the  offer  of  delivery  to  accept  them,  and  treat  them  as  his 
own.  Where  the  contract  so  plainly  points  for  something  fur- 
ther to  be  done  by  the  purchaser,  some  further  right  or  priv- 
ilege to  be  exercised  by  him  before  actual  delivery  takes  place, 
and  actual  possession  and  title  change,  there  the  possession  and 
title  must  be  held  to  remain  in  the  seller,  and  he  must  take 
charge  of  the  property,  and  keep  or  sell  the  same  as  he  sees 
fit."  1 

§  765.  .  However  sound  this  decision  may  have  been 

upon  its  own  peculiar  facts,  it  is  obvious  that  the  rule  laid 
down,  in  supposed  analogy  to  the  case  of  goods  to  be  manu- 
factured or  supplied,  is  not  that  which  has  been  seen  to  be 
supported  by  the  weight  of  modern  authority.2  And  no  reason 
is  apparent  why  cases  of  this  description  should  not  fall  within 

i  Citing   Hale  v.   Huntley,  21  Vt.     man  v.  Hill,  86  N.  H.  311;  Comfort  v. 
147;  Jones  v.  Marsh,  22  Vt.  144;  Gil-    Kiersted,  26  Barb.  (N.  Y.)  472. 

2  See  ante,  §  754  et  seq. 
64:3 


§  765.] 


LAW    OF    SALE. 


[BOOK   II. 


the  general  rule  that,  unless  a  contrary  intention  is  evident, 
the  title  would  pass  when  the  goods,  of  the  kind  agreed  upon, 
are  by  tender  or  other  equivalent  act  set  apart  and  appropri- 
ated to  the  buyer.1 


iThus,  in  Colorado  Springs  Live 
Stock  Co.  v.  Godding  (1894),  20  Colo. 
249, 38  Pac.  R.  58,  where  the  contract 
was  for  raising  and  selling  certain 
crops  of  alfalfa,  and  the  alfalfa  had 
been  raised,  cut,  stacked  and  meas- 
ured as  the  contract  required,  it  was 
held  that  the  title  then  passed  and 
the  price  could  be  recovered.  Said 
the  court:  "While  it  has  been  held 
in  some  of  the  cases  that  the  accept- 
ance by  the  purchaser  of  an  article 
appropriated  by  the  seller  according 

644 


to  the  terms  of  an  executory  con- 
tract of  sale  is  necessary  to  pass  the 
title,  the  weight  of  authority  is  that 
the  appropriation  by  the  seller  of  an 
article,  when  completed  in  accord- 
ance with  the  terms  of  the  contract, 
passes  the  title  without  the  subse- 
quent assent  of  the  purchaser,  and 
an  action  for  the  agreed  price  can 
be  maintained."  See  also  Wood  v. 
Michaud  (1896),  63  Minn.  478,  63  N. 
W.  R.  963. 


CHAPTER  YI. 


OF  THE  RESERVATION  OF  THE  JUS  DISPONENDL 


Custom  does  not  affect. 

Sending  invoice,  etc.,  to  buyer 

does  not  affect. 
786.  The  rules  stated. 

Resume  of  English  cases. 

789.  Bill  of  lading  consigning 

goods  to  buyer. 
■792.  Transfer  of  bill  of  lading 

during  transit. 
794.  How    when    goods    sent 

C.  O.  D. 
-797.  How  when  goods  to   be 

delivered  F.  O.  B. 


§§  766,  767.  Purpose  of  this  chapter.    §  781. 

768.  Distinctions.  782. 

769.  Sending  goods  by  carrier  not 

an    appropriation    if  seller       783- 
retains  power  of  disposal.  787. 

770.  Methods  adopted.  78S, 

771-773.  Choice  of  methods. 

774-776.  Bill  of  lading    taken   to       790- 

seller's  order. 
777,  778.  Purpose  and  effect.  793, 

779.  Bill  of  lading  to  seller's  order 

attached  to  draft  on  buyer.       795- 

780.  Buyer  obtaining  posses- 
sion without  payment. 

§  766,  Purpose  of  this  chapter,—  It  has  been  seen  in  an 
earlier  chapter  that  the  question  when  the  title  passes  is  pri- 
marily one  of  the  intention  of  the  parties;  and  the  rules  which 
have  been  heretofore  considered  are  rules  of  construction  ap- 
plied by  the  courts  in  their  endeavors  to  arrive  at  the  intention 
of  the  parties  where  the  latter  have  not  made  their  meaning 
clear  by  their  agreement.  Among  other  rules  it  has  been  found 
that  where  the  parties  have  come  to  an  agreement  for  the  pres- 
ent sale  of  a  specific  chattel,  the  title  to  it,  in  the  absence  of 
anything  to  indicate  a  contrary  intent,  will  be  deemed  forth- 
with to  pass  without  the  necessity  of  any  other  act  of  the  par- 
ties, such  as  payment  or  delivery.  But  the  chattel  to  be  sold 
is  not  always  designated  at  the  time  of  the  agreement,  and  in 
the  preceding  chapters  there  has  been  considered  what  acts 
will  suffice,  where  the  parties  have  agreed  upon  the  terms  of 
the  contract  but  not  upon  the  chattel,  to  subsequently  designate 
the  chattel  which  is  to  be  transferred  and  to  appropriate  it 
to  the  contract. 

641 


§§  767-709.]  LAW  OF  SALE.  [book  II. 

§  767.  .  A  variety  of  acts  which  have  been  passed  upon 

by  the  courts  has  been  enumerated,  but  it  is  obvious  that  the 
list  is  not  exhaustive  owing  to  the  infinite  variety  of  forms  in 
which  the  transactions  of  the  parties  may  present  themselves. 
These  acts,  also,  have  been  held  to  pass  the  title  because  that 
was  presumed  to  have  been  the  intention  of  the  parties.  Such 
may  not  always  have  been  their  intention,  however,  and  it  re- 
mains to  consider  what  acts  will  suffice  to  indicate  an  inten- 
tion that  the  title  shall  not  pass,  notwithstanding  such  conduct 
or  events  as  would  otherwise  have  operated  to  transfer  the 
title. 

§  768.  Distinctions. —  In  considering  this  question  care 

must  be  taken  to  discriminate  between  those  cases  in  which 
the  title  has  passed,  though  the  seller  has  a  right  to  retain  the 
goods  until  some  act  has  been  done  by  the  buyer,  and  those  in 
which  the  act  is  to  be  done  before  the  title  is  to  pass  even 
though  the  goods  may  have  left  the  possession  of  the  seller, — 
in  other  words,  between  a  lien  and  a  reservation  of  the  title. 
It  is  to  the  latter  question  that  the  present  chapter  is  devoted, 
and  to  that  branch  of  the  latter  question  which  has  to  do  with 
the  subject  of  the  preceding  chapters. 

§  769.  Sending  goods  by  carrier  is  not  an  appropriation 
if  seller  reserves  jus  disponendi. —  The  question  now  in  hand 
most  frequently  arises  where  goods  have  been  ordered  from  a 
seller  at  a  distance,  who  is  to  transmit  them  by  carrier  to  the 
buyer.  It  was  seen  in  a  preceding  chapter  that  when  such 
goods  have  been  unconditionally  delivered  to  the  carrier  for 
transportation  to  the  purchaser,  such  delivery  is  usually  deemed 
to  be  an  appropriation  of  t>e  goods  to  the  contract  and  operates 
thereupon  to  transfer  the  title.  Cases,  however,  frequently 
arise  in  which,  while  he  desires  and  expects  to  transmit  the 
goods,  the  seller  still  desires  to  retain  some  hold  upon  them  to 
secure  himself  against  the  insolvency  or  default  of  the  buyer. 
The  seller  in  such  cases  may  be  content  to  rely  upon  his  ordi- 
nary right  of  stoppage  in  transitu,  or  he  may  desire  to  retain 
the  title  in  himself  until  the  goods  are  paid  for.     He  may,  of 

646 


CH.  VI.]  RESERVATION    OF    THE    JUS    DISPONENDI.       [§§  770-772. 

course,  do  this,  as  was  seen  in  a  preceding  chapter,  by  an  ex- 
press stipulation  that  the  title  shall  not  pass  until  the  price  is 
paid ;  but  a  simpler  and  more  temporary  reservation  of  con- 
trol is  now  the  purpose. 

§  770.  Methods  adopted. —  In  accomplishing  this  pur- 
pose one  of  three  methods  is  commonly  employed:  1.  The  ship- 
per takes  a  bill  of  lading  providing  for  the  delivery  of  the 
goods  at  the  point  of  destination  to  his  own  order  or  that  of 
his  agent,  and  then  transmits  the  bill  of  lading  to  an  agent  at 
the  place  of  delivery  with  instructions  not  to  deliver  the  goods 
to  the  vendee  until  paid  for;  2.  The  shipper  may  take  a  like 
bill  of  lading  and,  attaching  it  indorsed  to  a  draft  upon  the  pur- 
chaser, may  deliver  the  draft  for  collection  to,  or  may  dis- 
count it  at,  some  bank  which  will  forward  both  to  a  correspond- 
ent at  the  place  of  delivery,  where  the  latter  will  deliver  the 
bill  of  lading  to  the  purchaser  upon  his  paying  or  accepting 
the  draft;  or  3.  The  shipper  may  take  a  bill  of  lading  reciting 
the  delivery  of  the  goods  by  him  to  the  carrier  for  transporta- 
tion to  the  purchaser  (without  making  them  expressly  deliver- 
able to  the  shipper  or  his  order),  and  may  use  this  in  connec- 
tion with  a  draft,  as  in  the  second  method.  The  first  two 
methods  are  the  most  common,  particularly  in  the  English 
cases. 

§  771.  Choice  of  methods. —  Whatever  be  the  method 

adopted,  it  must  be  one  calculated  to  effectuate  the  purpose 
and  to  rebut  the  presumption  arising  from  unconditional  de- 
livery to  the  carrier.  A  mere  mental  act  on  the  part  of  the 
seller  will  not  suffice  if  it  be  not  accompanied  by  some  out- 
ward act  indicative  of  a  purpose  and  legally  sufficient  to  re- 
tain a  hold  upon  the  title  other  than  the  mere  right  of  stoppage 
in  transitu. 

§  772.  .  The  method  adopted  should,  moreover,  be  an 

unambiguous  and  unequivocal  one.  Thus,  where  the  terms  of 
the  invoice  showed  clearly  that  the  seller  deemed  the  title  to 
have  passed,  the  fact  that  he  sent  a  bill  of  lading  to  his  agent 

647 


§§  773,  774]  law  of  sale.  [book  ii. 

to  be  used  in  coercing  payment  was  held  not  to  prevent  the 
passing  of  the  title.1 

§  773,  .  The  seller  must  also  act  in  good  faith.     Thus 

where,  after  an  unconditional  delivery  for  the  buyer  to  the 
captain  of  the  buyer's  own  ship,  the  seller  by  misrepresenta- 
tion obtained  from  the  captain  a  bill  of  lading  in  blank  as  to 
the  consignee  and  sent  that  with  draft  attached  to  an  agent 
for  collection,  it  was  held  that  the  title  had  passed  and  that 
this  dealing  with  the  bill  of  lading  did  not  affect  it.2 

§  771.  Bill  of  lading  to  seller's  order. —  Where  the  seller 
takes  a  bill  of  lading  which  expressly  stipulates  that  the  goods 
are  to  be  delivered,  at  the  point  of  destination,  to  himself  or 
agent,  or  to  his  order  or  assigns,  there  is  the  clearest  possible 
evidence  upon  the  face  of  the  transaction  that,  notwithstand- 
ing such  an  appropriation  of  the  goods  as  might  have  been  suf- 
ficient to  transfer  the  title  to  the  buyer,  the  seller  has  deter- 
mined to  prevent  this  resu't  by  keeping  the  goods  within  his 
own  control.3 

iWalley  v.  Montgomery  (1803),  3  Co.  v.  Commercial  Bank  (1887),  123 

East,  583.  U.  S.  727,  8  S.  Ct.  266;  Libby  v.  In- 

2  Ogle  v.  Atkinson  (1814),  5  Taunt,  galls  (1878),  124  Mass.  503;  Furman  v. 
759.  Eailroad  Co.,  106  N.  Y.  579,  13  N.  E. 

3  Craven  v.  Ryder  (1816),  6  Taunt.  R.  587;  Joslyn  v.  Grand  Trunk  Ry. 
433;  Ruck  v.  Hatfield  (1822),  5  B.  &  Co.,  51  Vt.  92;  Peoria  Bank  v.  Rail- 
Aid.  632;  Wait  v.  Baker  (1848),  2  Ex.  road  Co.,  58  N.  H.  203;  Bank  v.  Cum- 
1;  Van  Casteel  v.  Booker  (1848),  2  Ex.  mings,  89  Term.  609,  18  S.  W.  R.  115, 
691;  Ellershaw  v.  Magniac  (1843),  6  24  Am.  St.  R  618;  Security  Bank  v. 
Ex.  570;  Ward  v.  Taylor  (1870),  56  111.  Luttgen,  29  Minn.  363,  13  N.  W.  R. 
491;  Bellefontaine  v.  Vassaux  (1896),  151. 

53  Ohio  St.  323,  45  N.  E.  R  321;  Will-  Where  the  bill  of  lading  is  taken 
man  Co.  v.  Fussy  (1895),  15  Mont.  511,  to  the  seller's  order,  the  mere  fact 
39  Pac.  R.  738;  Dows  v.  National  Ex-  that  the  buyer  is  named  as  con- 
change  Bank  (1875),  91  U.  S.  618:  See-  signee  will  not  pass  the  title  to  him. 
ligson  v.  Philbrick  (1886),  30  Fed.  R.  First  Nat.  Bank  v.  Crocker  (1872),  111 
600;  Berger  v.  State  (1887),  50  Ark.  Mass.  163. 

20,  6  S.  W.  R.  15;  Bergeman  v.  Rail-  Wait  v.  Baker,  2  Ex.  1  (supra),  is 

road  Co.  (1890),  104  Mo.  77, 15  S.  W.  R.  a  leading  case  upon  the  subject  of 

992;  Pennsylvania  Ry.  Co.  v.  Stern  reserving  the  jus  disponendi  by  tak- 

(1888),  119  Pa.  St.  24,  12  Atl.  R.  756,  ingthe  bill  of  lading  to  the  shipper's 

4  Am.  St.  R  626;  North  Penn.  R  R.  order.     There    the  defendant,  who 

648 


CH.  VI.] 


RESERVATION    OF   THE   JUS    DISPONENDI. 


[§  775. 


This  evidence,  however,  is  not  absolutely  conclusive,  though, 
as  stated  by  the  supreme  court  of  the  United  States,  "  it  is  held 
to  be  almost  conclusive." l 

§  775.  Thus,  for  example,  it  is  possible,  even  in  such  a 

case,  that  it  was  the  intention  of  the  parties  —  as  where  the 
person  occupying  the  relation  of  vendor  was  really  acting  as 
agent  of  the  buyer2  —  that  the  title  should  pass  upon  the  de- 
was    a    corn     factor     at     Bristol,    ery  to  the  captain  of  the  vessel  to  be 


made  a  contract  by  mail  with  one 
Lethbridge,   a  corn   factor    at  Ply- 
mouth, to  buy  from  him  a  quantity 
of  barley  f.  o.  b.  at  Kingsbridge,  for 
cash  on  handing  bills  of  lading  or 
acceptance  at  two  months.     Leth- 
bridge was  directed  to  charter  a  ves- 
sel and  he  chartered  the  "  Emerald." 
Her  captain  signed  a  bill  of  lading, 
making  the  barley  deliverable  at  Bris- 
tol to  the  order  of  Lethbridge  or  as- 
signs.    Lethbridge  went  to  Bristol 
and  called  at  defendant's  office  early 
in  the  morning,  leaving  there    an 
unindorsed   bill    of  lading  and  an 
invoice.    He  called  again  later  in 
the  day,  when  a  dispute  arose,  and 
though  the  defendant  finally  said 
that    he    accepted  the    barley  and 
offered  to  pay  the  cash,  Lethbridge 
declined  it  and  took  away  the  bill  of 
lading,  which  he  indorsed  to  plaintiffs 
for  value.     When  the  ship  arrived, 
defendant  obtained  possession  of  part 
of  the  cargo   before   plaintiffs  pre- 
sented their  bill  of  lading.    The  ac- 
tion was  trover  for  the  barley  so  taken 
and  plaintiffs  recovered.     Parke,  B., 
after  pointing  out  that  although  a 
delivery  to  a  carrier  is,  if  nothing 
further  takes  place,  a  delivery  to  the 
vendee  so  as  to  vest  the  property  in 
him,  but  that  such  was  not  the  case, 
said:  "The  delivery  of  the  goods  on 
board  the  ship  was  not  a  delivery  of 
them  to  the  defendant,  but  a  deliv- 


carried  under  a  bill  of  lading,  and 
that  bill  of  lading  indicated  the  per- 
son for  whom  they  were  to  be  car- 
ried. By  that  bill  of  lading  the  goods 
were  to  be  carried  by  the  master  of 
the  vessel  for  and  on  account  of  Leth- 
bridge. to  be  delivered  to  him  in  case 
the  bill  of  lading  should  not  be  as- 
signed, and,  if  it  should,  then  to  the 
assignee.  The  goods  therefore  still 
continued  in  possession  of  the  mas- 
ter of  the  vessel,  not  as  in  the  case  of 
a  common  carrier,  but  as  a  person 
carrying  them  on  behalf  of  Leth- 
bridge." 

1  Dows  v.  National  Exch.  Bank 
(1875),  91  U.  S.  618,  supra. 

2  This  was  the  case  in  Van  Casteel 
v.  Booker  (1848),  2  Ex.  691,  where 
Parke,  B.,  said:  "Notwithstanding 
the  form  of  the  bill  of  lading,  the 
contract  may  have  been  made  really 
on  behalf  of  the  vendee,  though 
prima  facie  it  is  made  on  behalf  of 
the  vendor;  and  it  is  a  question  for 
the  jury,  to  be  decided  on  the  evi- 
dence, looking  at  the  form  of  the  bill 
of  lading,  particularly  noticing  that 
it  is  made  freight  free,  and  the  lan- 
guage of  the  invoice,  and  the  imme- 
diate transfer  of  the  bill  of  lading 
to  the  [vendeesj,  and  other  facts, 
whether  the  goods  were  not  really 
delivered  on  board  to  be  carried  for 
and  on  account  and  at  the  risk  of 
the  [vendeesj." 


649 


§  775.] 


LAW    OF    SALE. 


[book  II. 


livery  to  the  carrier.  And  notwithstanding  the  evidence  of 
the  bill  of  lading,  there  may  be  other  evidence  sufficient  to 
overthrow  it  indicating  a  contrary  intention;  as  where,  from 
the  invoice,  it  appears  that  the  goods  were  shipped  "for  ac- 
.count  and  at  the  risk  "  of  the  buyer,1  and  the  like. 

Whether  there  was  such  a  contrary  intention  is  usually  a 
question  of  fact  for  the  jury,2  and  it  must  be  shown  by  evi- 
dence sufficiently  strong  to  overcome  the  presumption  arising 
upon  the  face  of  the  transaction.3     In  the  absence  of  such  a 


iWalley  v.  Montgomery  (1803),  3 
East,  585.  So  where  the  goods  marked 
with  the  initials  of  the  buyer  have 
been  delivered  to  the  carrier,  and  the 
purchaser  has  accepted  a  draft  for 
the  price,  the  fact  that  the  seller 
takes  the  carrier's  receipt  in  his  own 
name  will  not  overthrow  the  pre- 
sumption that  the  title  passed.  Hall 
v.  Richardson  (1860),  16  Md.  396,  77 
Am.  Dec  303.  And  where  the  con- 
tract was  that  the  goods  should  be 
delivered  over  the  rail  of  a  vessel, 
and  they  have  been  so  delivered,  the 
fact  that  afterwards,  at  the  master's 
suggestion,  a  bill  of  lading  in  the 
shipper's  name  is  made  out,  as  the 
master  said.  "  for  the  purpose  of  fix- 
ing the  freight,"  will  not  necessarily 
defeat  the  effect  of  the  delivery. 
Gibbons  v.  Robinson  (1886),  63  Mich. 
146,  29  N.  W.  R.  533.  And  where 
the  sellers,  who  were  indebted  to  the 
buyers,  delivered  goods  to  the  carrier 
consigned  to  the  buyers,  and  wrote 
them  saying  "we  deliver  you  this 
load  on  our  indebtedness,''  the  fact 
that  the  shippers  took  a  bill  of  lad- 
ing in  their  own  names  was  held  not 
to  defeat  the  effect  of  the  delivery. 
Straus  v.  Wessel  (1876),  30  Ohio  St. 
211,  Adams'  Cases  on  Sales,  781. 

2  In  Gibbons  v.  Robinson,  supra,  it 
is  sa|d:  "  The  question  of  delivery  is 
one  of  fact,  and  is  mainly  governed 


by  the  intention  of  the  parties.  Where 
the  evidence  is  equivocal,  it  is  prop- 
erly a  question  of  fact  for  the  jury, 
under  proper  instructions,  and  must 
be  submitted  to  them,  unless  it  is 
plain,  as  matter  of  law,  that  the  evi- 
dence will  justify  a  finding  but  one 
way,"  citing  Allen  v.  Williams,  12 
Pick.  297;  Stanton  v.  Eager,  16  Pick. 
467;  Stevens  v.  Boston,  etc.  R.  Co., 
8  Gray,  262;  Moakes  v.  Nicolson,  19 
Com.  B.  (N.  S.)  290,  115  Eng.  Com.  L. 
290;  Godts  v.  Rose,  25  L.  J.  C.  P.  61, 
84  Eng.  Com.  L,  229:  Tregelles  v. 
Sewell,  7  H.  &  N.  574.  Though  where 
it  appears  on  the  face  of  the  docu- 
ments, the  court  may  decide  it  as  a 
quest  ion  of  law.  Key  v.  Cotesvvorth 
(1852),  7  Exch.  595. 

3  In  Browne  v.  Hare  (1859),  4  H.  & 
N.  822,  Erie,  J.,  said:  "The  contract 
was  for  the  purchase  of  unascer- 
tained goods,  and  the  question  has 
been  when  the  property  passed.  For 
the  answer  the  contract  must  be  re- 
sorted to;  and  under  that  we  think 
the  property  passed  when  the  goods 
were  placed  '  free  on  board '  in  per- 
formance of  the  contract.  In  this 
class  of  cases  the  passing  of  the  prop- 
erty may  depend,  according  to  the 
contract,  either  on  mutual  consent 
of  both  parties,  or  on  the  act  of  the 
vendor  communicated  to  the  pur- 
chaser, or  on  the  act  of  the  vendor 


650 


en.  vi.] 


RESERVATION    OF    THE    JUS    DISPOXENDI. 


[§  775. 


showing,  the  transaction  will  have  its  natural  effect  of  reserv- 
ing the  jus  disponendi  in  the  seller,  and  will  prevent  a  trans- 
fer of  the  title  to  the  buyer  until  such  time  as,  upon  payment 
or  otherwise,  the  seller,  by  indorsement  or  its  equivalent, 
places  the  goods  at  the  disposal  of  the  buyer.1  The  question 
is,  was  it  the  purpose  of  the  seller,  in  taking  the  bill  of  lading 
to  his  own  order,  to  reserve  the  jus  disponendi  —  to  retain  con- 
trol of  the  goods,—  or  was  he  desirous  that  the  buyer  should 
take  the  goods  and  simply  adopted  this  method  as  matter  of 
precaution  in  case  the  buyer,  for  any  reason,  should  not  take 
them.2 


alone.  Here  it  passed  by  the  act  of 
the  vendor  alone.  If  the  bill  of  lad- 
ing had  made  the  goods  '  to  be  de- 
livered to  the  order  of  the  consignee,' 
the  passing  of  the  property  would  be 
clear.  The  bill  of  lading  made  them 
'to  be  delivered  to  the  order  of  the 
consignor,'  and  he  indorsed  it  to  the 
order  of  the  consignee  and  sent  it  to 
his  agent  for  the  consignee.  Thus 
the  real  question  has  been  on  the  in- 
tention with  which  the  bill  of  lading 
was  taken  in  this  form :  whether  the 
consignor  shipped  the  goods  in  per- 
formance of  his  contract  to  place 
them  'free  on  board;'  or  for  the  pur- 
pose of  retaining  a  control  over  them 
and  continuing  to  be  owner,  con- 
trary to  the  contract,  as  in  the  case 
of  Wait  v.  Baker,  2  Ex.  1,  and  as 
is  explained  in  Turner  v.  The  Trust- 
ees of  the  Liverpool  Docks,  6  Ex. 
543.  and  Van  Casteel  v.  Booker,  2 
Ex.  691.  The  question  was  one  of 
fact,  and  must  be  taken  to  have  been 
disposed  of  at  the  trial;  the  only 
question  before  the  court  below  or 
before  us  being  whether  the  mode  of 
taking  the  bill  of  lading  necessarily 
prevented  the  property  from  pass- 
ing. In  our  opinion  it  did  not,  under 
the  circumstances." 


i  Where  the  seller  indorses  the  bill 
of  lading  and  sends  it  to  the  pur- 
chaser he  clearly  waives  the  jus  dis- 
ponendi.  Key  v.  Cotesworth  (1852), 
7  Exch.  595;  Browne  v.  Hare  (1859), 
4  H.  &  N.  822;  Wilmshurst  v.  Bowker 
(1844),  7  Man.  &  Gr.  882.  So,  also, 
where  he  gives  the  buyer  an  uncon- 
ditional order  on  the  carrier  for  the 
goods.  Hatch  v.  Bayley  (1853),  12 
Cash.  (Mass.)  27;  Hatch  v.  Lincoln 
(1853),  12  Gush.  31. 

So,  though  the  seller  retains  the 
bill  of  lading,  if  the  goods  are  actu- 
ally delivered  to  and  received  by  the 
buyer,  the  jus  disponendi  is  gone. 
Hope  Lumber  Co.  v.  Hardware  Co. 
(1890),  53  Ark.  196, 13  S.  W.  R.  731. 

2  The  distinction  is  clearly  shown  in 
Joyce  v.  Swann  (1864),  17  C.  B.  (N.  S.) 
84.  There  it  appeared  that  Seagrave 
&  Co.  of  Liverpool  had  contracted 
to  sell  a  cargo  of  guano  to  McCarter 
of  Londonderry.  They  wrote  him 
February  26th  that  they  had  engaged 
a  vessel  and  would  have  the  cargo 
on  board  in  a  few  days  and  proposed 
to  draw  on  him  for  the  guano  at  a 
certain  price  per  ton.  On  March  2d 
McCarter  ordered  the  cargo  insured 
for  him.  On  March  3d  he  wrote  to 
Seagi-ave  &  Co.  complaining  that  the 


651 


776.] 


LAW    OF    SALE. 


[L'OOK    II. 


776. 


The  mere  fact,  however,  that  the  consignor  was 


the  agent  of  the  consignee  is  not  necessarily  conclusive,  for 
"where  a  commercial  correspondent,  however  set  in  motion 
by  a  principal  for  whom  he  acts,  advances  his  own  money  or 
credit  for  the  purchase  of  property  and  takes  the  bill  of  lading 
in  his  own  name,  looking  to  such  property  as  the  reliable  and 
safe  means  of  reimbursement  up  to  the  moment  when  the  orig- 
inal principal  shall  pay  the  purchase  price,  he  becomes  the 
owner  of  the  property  instead  of  its  pledgee,  and  his  relation 
to  the  original  mover  in  the  transaction  is  that  of  an  owner 


price  was  too  high.  On  March  4th 
Seagrave  Co.,  fearing  from  this  let- 
ter that  McCarter  might  not  accept 
the  guano,  took  a  bill  of  lading  in 
their  own  names  and  insured  the 
cargo  on  their  own  account.  This 
bill  of  lading  and  an  invoice  were 
sent  to  a  partner  of  the  firm  who 
happened  to  be  near  Londonderry, 
and  he  called  on  McCarter  in  the 
evening  on  Saturday,  March  7th.  Mc- 
Carter was  then  willing  to  take  the 
cargo  and  they  met  Monday  morn- 
ing, when  the  bill  of  lading  was  in- 
dorsed to  McCarter  and  he  gave  his 
acceptance  for  it.  It  afterwards  ap- 
peared that  the  vessel  and  cargo  had 
been  lost  on  the  evening  of  March 
7th.  The  action  was  upon  the  insur- 
ance effected  by  Joyce,  the  insur- 
ance broker,  for  McCarter,  and  de- 
fendants, the  underwriters,  con- 
tended that  McCarter  had  no  insur- 
able interest  on  March  2d,  but  the 
jury  found  that  Seagrave  &  Co.  had 
put  the  cargo  on  board  with  inten- 
tion of  passing  the  property  to  him, 
and  found  for  the  plaintiff.  A  mo- 
tion for  nonsuit  or  new  trial  was  de- 
nied. The  court,  per  Williams,  J., 
said:  "  It  was  a  question  for  the  jury, 
and  I  think  they  were  warranted  in 
assuming  that  the  guano  was  put  on 
board    pursuant    to    that    contract 

65 


with  the  intention  of  transferring 
the  property  from  the  sellers  to  the 
buyers.  It  is  true  that  the  bill  of 
lading  was  taken  in  the  names  of 
the  sellers,  and  at  the  time  the  insur- 
ance was  declared  was  unindorsed. 
That  was  a  circumstance  which  was 
well  worthy  the  attention  of  the 
jury,  and  might  have  induced  them 
to  come  to  a  contrary  conclusion. 
But,  if  they  thought  that,  notwith- 
standing this,  there  were  other  cir- 
cumstances sufficiently  cogent  to 
induce  them  to  come  to  the  conclu- 
sion that  the  property  was  intended 
to  pass,  I  am  of  opinion  that  the 
mere  circumstance  of  the  form  of 
the  bill  of  lading,  and  of  the  invoice 
being  transmitted  to  the  partner 
then  in  Ireland,  instead  of  to  Mc- 
Carter direct,  was  not  sufficient  to 
annihilate  the  other  evidence  in  the 
cause,  though  it  might  induce  the 
jury  to  pause.  The  cases  of  Wait  v. 
Baker,  2  Ex.  1,  and  Browne  v.  Hare. 
3  H.  &  N.  484,  4  id.  822,  appear  to 
me  clearly  to  establish  the  distinc- 
tion that,  if  from  all  the  facts  it  may 
fairly  be  inferred  that  the  bill  of 
lading  wras  taken  in  the  name  of  the 
seller  in  order  to  retain  dominion 
over  the  goods,  that  shows  that  there 
was  no  intention  to  pass  the  prop- 
erty; but  if  the  whole  of  the  circum- 


CH.  VI.]  KESERVATIOX    OF   THE   JUS   DISPONEXDI.       [§§  777,  778. 

under  a  contract  to  sell  and  deliver  when  the  purchase  price  is 
paid."1 

§777.  Purpose  and  effect.— This  reservation  of  the 

title  by  the  seller  may  be  prompted  by  any  one  of  a  number  of 
motives  and  it  may  have  a  variety  of  effects.  Its  ordinary  pur- 
pose, undoubtedly,  is  to  coerce  payment  of  the  price  by  retain- 
ing title  until  payment.  In  addition  to  this  main  purpose  and 
effect,  it  may  have  several  incidental  or  collateral  effects.  It 
may,  for  example,  determine  when  and  where  the  title  has 
passed  and  the  sale  has  been  completed  within  the  purview  of 
local  statutes  forbidding  or  restricting  sales,  as  in  the  common 
case  of  the  statutes  forbidding  or  restricting  sales  of  intoxicat- 
ing liquors.2  It  may  also  determine  whether  or  not  the  goods 
have  become  taxable  or  leviable  as  the  property  of  the  vendee.3 
And  in  addition  to  these,  as  will  be  seen,4  it  may  give  to  the 
vendor  a  wide  power  of  making  pledges,  sales  or  mortgages  of 
the  goods  before  they  become  the  property  of  the  original 
vendee. 

§  778.  .  "With  the  title  would  also  ordinarily  be  retained 

the  risk,  though  this  must  depend  upon  the  manner  in  which 
the  bill  of  lading  is  subsequently  dealt  with.  If,  for  example, 
though  the  bill  of  lading  were  taken  to  the  seller's  order,  he 
at  once  indorses  it  and  sends  it  to  the  buyer,  or  gives  the  lat- 
ter an  order  on  the  carrier  for  the  goods,  the  title,  as  has  been 

stances  lead  to  the  conclusion  that  Berger  v.  State,  50  Ark.  20,  6  S.  W.  R. 

that  was  not  the  object,  the  form  of  15;  Sarbecker  v.  State,  65  Wis.  171, 

the  bill  of  lading  has  no  influence  on  56  Am.  R.  624;  Coin.  v.  Fleming,  130 

the  result."    See  also  Straus  v.  Wes-  Pa.  St.  138,  18  Atl.  R.  622,  17  Am.  St. 

sel  (1876),  30  Ohio  St.  211.  R.  763,  5  L.  R.  A.  470;  State  v.  O'Neil, 

i  Moors  v.  Kidder  (1887),  106  N.  Y.  56  Vt.  140,  56  Am.  R.  557;  State  v. 

32;    Farmers,'  etc.    Bank   v.   Logan  Peters,  91  Me.  31,  39  Atl.  R.  342;  State 

(1878),  74  N.  Y.  568.  v.  Wingfield,  115  Mo.  428,  22  S.  W.  R. 

2  Thus,  where  the  jus  disponendi  363, 37  Am.  St.  R.  406,  and  many  other 

lias  been  so  reserved,  the  title  passes  cases  cited  in  these. 
and  the  sale  is  completed  at  the  time        3  For  example,  see  Merchants'  Ex- 

and  place  of  delivery  rather  than  of  change  Bank  v.  McGraw,  59  Fed.  R. 

shipment.  See  Bellefontaine  v.  Vas-  972,  15  U.  S.  App.  332,  8  C.  C.  A.  420. 
saux,  55  Ohio  St.  323,  45  N.  E.  R  321 ;        *  See  post,  g§  793,  794.- 

653 


§  770.]  LAW    OF    SALE.  [LOOK    II. 

seen,  would  be  vested  in  the  buyer.1  And  if  the  seller  retain 
the  bill  of  lading  merely  for  the  purpose  of  obtaining  payment 
of  the  price,  but  intending  that  the  buyer  should  have  the 
goods  upon  payment,  the  buyer,  by  the  shipment,  acquires  an 
interest  in  the  gooils  which  will  entitle  him  to  have  them  upon 
payment.  "With  reference  to  such  a  case  Lord  Bramwell  said 
on  one  occasion:2  "That  the  vendee  has  an  interest  in  the 
specific  goods  as  soon  as  they  are  shipped  is  plain.  By  the 
contract  they  are  at  his  risk.  If  lost  or  damaged,  he  must 
bear  the  loss.  If  specially  good  and  above  the  average  qual- 
ity which  the  seller  was  bound  to  deliver,  the  benefit  is  the 
vendee's.  If  he  pays  the  price,  and  the  vendor  receives  it,  not 
having  transferred  the  property,  nor  created  any  right  over  it 
in  another,  the  property  vests." 

§  779.  Bill  of  lading  to  seller's  order  attached  to  draft  on 
buyer. —  Equally  significant  of  the  intention  is  the  case  in 
which  the  bill  of  lading,  taken  to  the  order  of  the  seller,3  is 
indorsed  by  him  and  attached  to  a  draft  upon  the  purchaser 
for  the  price;  and  the  draft  is  then  delivered  to  a  bank  for  col- 
lection,4 or  is  discounted  by  the  bank  in  reliance  upon  the  secu- 

*See  cases  cited  in  the  fifth  note  bank  on  acceptance  of  the  draft,  and 

to  section  775.  passes  title  to  the  goods,  and  the 

2  Mirabita  v.  Imperial  Ottoman  bank  need  not  hold  the  bill  of  lading 
Bank  (1878),  3  Exch.  Div.  164.  until  payment,  the  time  draft  being 

3  The  same  effect  has  been  given  evidence  of  a  term  of  credit  given  to 
to  the  transaction  where  the  bill  of  the  drawee.  St.  Paul  Mill  Co.  v.  Great 
lading  was  a  mere  receipt,  naming  Western  Despatch  Co.  (1886),  27  Fed. 
the  seller  as  consignor  and  the  buyer  R.  434;  National  Bank  v.  Merchants' 
as  consignee.  Emery  s  Sons  v.  Irving  Bank  (1875),  91  U.  S.  92:  Moore  v. 
National  Bank  (1874),  25  Ohio  St.  360,  Louisiana  Nat.  Bank  (1892),  44  La. 
18  Am.  R.  299.  See  also  post,  §$  783-  Ann.  99,  32  Am.  St.  R.  332,  10  S.  R, 
786.  407.   See  also  Marine  Bank  v.  Wright, 

4 "  Time  "  and  "  sight "  drafts  —  A  48  N.  Y.  1 ;  Hall  v.  Richardson  (1860), 
bill  of  lading  making  goods  deliver-  16  Md.  396,  77  Am.  Dec.  303. 
able  to  the  order  of  the  shipper  and  But  where  the  draft  is  a  sight  draft, 
attached  to  a  time  draft  drawn  on  or  the  papers  otherwise  show  that  no 
the  purchaser  and  sent  to  a  bank  credit  was  given,  the  bill  of  lading 
"for  acceptance  and  collection,"  with  should  not  be  delivered  until  pay- 
no  other  instructions,  has  been  held  ment.  Second  National  Bank  v.  Cum- 
to  be    rightfully   delivered  by  the  mings  (1891),  89  Tenn.  609,  24  Am.  St. 

654 


CH.  VI.] 


RESERVATION    OF    THE    JUS    DISPONENDI. 


[§  779. 


rity  afforded  by  the  bill  of  lading.  In  such  a  case  presumptively 
no  title  passes  to  the  purchaser  until  by  payment  of  the  draft 
he  has  duly  obtained  the  possession  of  the  bill  of  lading,1  al- 
though the  goods  have  been  sent  in  the  buyer's  own  ship.2 


R.  618, 18  S.  W.  R.  115;  Mc Arthur  Co. 
v.  Old  Second  Nat.  Bank  (1899),  — 
Mich.  — ,81  N.  W.  R.  92;  Security 
Bank  v.  Luttgen  (1882),  29  Minn.  363, 
13  N.  W.  R.  151;  Kentucky  Refining 
Co.  v.  Globe  Refining  Co.  (1898),  — 
Ky.  — ,  47  S.  W.  R.  602,  42  L.  R.  A. 
353. 

Un  Jenkyns  v.  Brown  (1849),  14 
Q  B.  496,  it  appeared  that  one  Klin- 
gender,  a  merchant  in  New  Orleans, 
had  bought  a  cargo  of  corn  on  the 
order  of  the  plaintiffs,  and  taken  a 
bill  of  lading  for  it,  deliverable  to  his 
own  order.  He  then  drew  bills  for 
the  cost  of  the  cargo  on  the  plaint- 
iffs, and  sold  the  bills  to  a  New  Or- 
leans banker,  to  whom  he  also  in- 
dorsed the  bill  of  lading.    He  sent 


invoices  and  a  letter  of  advice  to  the 
plaintiffs,  showing  that  the  cargo 
was  bought  and  shipped  on  their  ac- 
count. It  was  held  that  the  prop- 
erty did  not  pass  to  plaintiffs,  as  the 
taking  of  a  bill  of  lading  by  Klin- 
gender  in  his  own  name  was  "  nearly 
conclusive  evidence  "  that  he  did  not 
intend  to  pass  the  property  to  plaint- 
iffs; that  by  delivering  the  indorsed 
bill  of  lading  to  the  buyer  of  the 
bills  of  exchange  he  had  conveyed  to 
them  "a  special  property"  in  the 
cargo;  and  by  the  invoice  and  letter 
of  advice  to  the  plaintiffs  he  had 
passed  to  them  the  "general  prop- 
erty" in  the  cargo,  subject  to  this 
special  property,  so  that  the  plaint- 
iffs' rights  to  the  goods  would  not 


2  Thus,  in  Turner  v.  Trustees  of  Liv- 
erpool Docks  (1851),  6  Exch.  543,  a 
cargo  of  cotton  had  been  purchased 
by  customers  who  sent  their  own  ves- 
sel for  it  and  it  was  placed  on  board; 
but  the  sellers  took  bills  of  lading 
making  the  goods  deliverable  '"to 
order  or  to  our  [the  sellers']  assigns, 
he  or  they  paying  freight  .  .  . 
nothing,  being  owner's  property." 
The  sellers  drew  on  the  purchasers 
for  the  price,  and  the  bills  were  dis- 
counted at  a  bauk  with  the  bill  of 
lading  as  security.  The  question  was 
whether  by  delivery  on  board  the 
buyer's  vessel,  and  the  statement  in 
the  bill  of  lading  that  the  goods  were 
his  property,  the  title  had  so  passed 
as  to  defeat  the  claim  of  the  bank. 
Said  the  court,  per  Patteson,  J.: 
"  There  is  no  doubt  that  the  delivery 


of  goods  on  board  the  purchasers' 
own  ship  is  a  delivery  to  him,  unless 
the  vendor  protects  himself  by  spe- 
cial terms  restraining  the  effect  of 
such  delivery.  In  the  present  case 
the  vendors,  by  the  terms  of  the  bill 
of  lading,  made  the  cotton  deliver- 
able at  Liverpool  to  their  order  or 
assigns,  and  there  was  not,  therefore, 
a  delivery  of  the  cotton  to  the  pur- 
chasers as  owners,  although  there 
was  a  delivery  on  board  their  ship.'' 
To  like  effect:  Ellershaw  v.  Magniac 
(1843),  6  Ex.  570;  Brandt  v.  Bowlby 
(1831),  2  B.  &  Ad.  932;  Van  Casteel 
v.  Booker  (1848),  2  Ex.  691;  Moakes  v. 
Nicholson  (1865),  19  C.  B.  (N.  S.)  290; 
Schotsmans  v.  Railway  Co.  (1867),  2 
Ch.  Ap.  332;  Dows  v.  National  Ex- 
change Bank  (1875),  91  U.  S.  618. 


655 


780.] 


LAW    OF    SALE. 


[BOOK   II. 


This  presumption,  however,  as  in  the  former  case,  is  not  ab- 
solutely conclusive,  and  the  title  may  pass  if  such  appears  to 
have  been  the  intention,  notwithstanding  the  draft.1 


780. 


Buyer  obtaining  possession  without  payment. 


And,  in  the  ordinary  case,  even  though  the  bill  of  lading  in- 
dorsed by  the  seller  comes  into  the  possession  of  the  buyer,  yet 
if  it  so  comes  into  his  possession  upon  condition  that  he  will 
pay  the  draft,  no  title  passes  to  him  until  he  has  paid  it.2    But 

arise  till  the  bills  of  exchange  were    that  there  was  evidence  to  go  to  the 


paid  by  them. 

In  Merchants'  Exchange  Bank  v. 
McGraw  (1894).  59  Fed.  R.  972, 15  U.  S. 
App.  332,  8  C.  C.  A.  420,  it  appeared 
that  L.  &  Co.  of  Milwaukee  had 
bought  a  quantity  of  hops  from  K., 
M.  &  Co.,  in  Seattle,  on  the  under- 
standing that  the  sellers  should  re- 
tain title  till  payment.  In  accord- 
ance with  an  undertaking  by  the 
Merchants'  Exchange  Bank  of  Mil- 
waukee to  guaranty  payment  by  L. 
&  Co.,  the  hops  were  delivered  to  a 
carrier  at  Seattle  and  K.,  M.  &  Co. 
took  a  bill  of  lading  in  which  L.  & 
Co.  were  named  as  consignees.  This 
bill  of  lading  was  attached  to  a  draft 
on  L.  &  Co.,  and  the  draft  was  dis- 
counted by  a  bank  in  Seattle,  which 
then  forwarded  the  draft  with  bill  of 
lading  attached  to  the  Merchants' 
Exchange  Bank  for  collection.  After 
the  delivery  of  the  hops  to  the  car- 
rier (but  whether  before  or  after  the 
discount  by  the  Seattle  bank  was 
not  clear)  the  hops  were  attached  at 
Seattle  as  the  goods  of  L.  &  Co.  In 
an  action  by  the  Merchants'  Ex- 
change Bank  against  the  attaching 
parties,  the  lower  court  nonsuited 
the  plaintiff  upon  the  ground  that  it 
did  not  appear  that  the  draft  was 
cashed  by  the  Seattle  bank  before 
the  levy;  but  on  appeal  it  was  held 


jury  tending  to  prove  that,  up  to  the 
time  of  the  delivery  of  the  bill  of 
lading  to  the  Seattle  bank,  the  title 
to  the  hops  remained  in  K.,  M.  &  Co., 
and  that  by  the  cashing  of  the  draft, 
and  the  delivery  of  the  bill  of  lading 
to  that  bank,  it  acted  as  the  agent 
of  the  Milwaukee  bank,  and  that  the 
title  passed  to  the  latter. 

See  also  that  title  does  not  pass 
until  payment,  Freeman  v.  Kraemer, 
63  Minn.  242,  65  N.  W.  R.  455;  Belle- 
fontaine  v.  Vassaux,  55  Ohio  St.  323, 
45  N.  E.  R.  321;  Baker  v.  Chicago, 
etc.  R.  Co.,  98  Iowa,  438,  67  N.  W.  R. 
376;  Erwin  v.  Harris,  87  Ga.  333,  13 
S.  E.  Rep.  513;  Scharff  v.  Meyer,  133 
Mo.  428,  34  S.  W.  R.  858,  54  Am.  St. 
R.  672;  Kentucky  Refining  Co.  v. 
Globe  Refining  Co.,  —  Ky.  — ,  47  S. 
W.  R.  602, 42  L.  R.  A.  353;  Bergeman  v. 
Indianapolis,  etc.  R.  Co.,  104  Mo.  77, 15 
S.  W.  R.  992;  Willman  Mercantile 
Co.  v.  Fussy,  15  Mont.  511,  39  Pac.  R. 
738;  Jones  v.  Brewer  (1885),  79  Ala. 
545. 

iHobart  v.  Littleheld  (1881),  13 
R.  I.  341.  See  also  Straus  v.  Wessel 
(1876),  30  Ohio  St.  211;  Joyce  v. 
Swann  (1864),  17  Com.  B.  (N.  S.)  84. 

2  Farmers'  Bank  v.  Logan  (1878),  74 
N.  Y.  568;  Shepherd  v.  Harrison 
(1871),  L.  R.  4  Q.  B.  196,  4  id.  493,' L.  R. 
5  H.  L.  116;    Bank  of  Rochester  v. 


656 


CH.  VI.] 


RESERVATION   OF   THE    JUS    DISPONENDI. 


[§  780. 


where  the  seller  has  so  dealt  with  the  bill  of  lading  for  the 
purpose  of  securing  the  payment  of  the  price,  the  buyer,  upon 
paying  or  tendering  the  price,  is  entitled  to  have  the  goods.1 


Jones  (1851),  4  N.  Y.  497,  55  Am.  Dec. 
290;  Moors  v.  Kidder  (1887),  106  N.  Y. 
32,  12  N.  E.  R.  818;  The  New  Haven 
Wire  Co.  Cases  (1889).  57  Conn.  352, 
18  Atl.  R.  2GG. 

In  Moors  v.  Kidder  (supra),  the 
facts  were  as  follows:  Kidder,  Pea- 
body  &  Co.,  bankers  of  Boston,  Mass., 
issued  a  letter  of  credit  to  C.  C.  Ban- 
croft &  Co.,  of  Calcutta,  authorizing 
the  latter  to  draw  on  Baring  Bros.  & 
Co.,  of  London,  for  the  cost  of  ship- 
ments of  goods,  through  bills  of  lad- 
ing" to  Boston  or  New  York,  to  the 
extent  of  £3,000,  for  account  of  P.  M. 
Swain,  guaranteeing  that  the  bills 
drawn  by  virtue  of  this  credit  would 
be  duly  honored  by  Baring  Bros.  & 
Co.  Swain,  on  his  part,  agreed  to 
provide  sufficient  funds  in  London 
for  meeting  the  payment  of  what- 
ever bills  should  be  drawn,  as  they 
matured.  And  he  further  expressly 
agreed  that  all  property  purchased 
under  this  arrangement,  together 
with  the  bills  of  lading  and  insur- 
ance, was  "  hereby  pledged  "  to  Bar- 
ing Bros.  &  Co.  as  collateral  security 
for  the  payment  of  the  drafts,  and 
might  be  sold  or  otherwise  disposed 
of  as  Baring  Bros.  &  Co.  might  deem 
necessary  for  their  own  protection. 
In  due  course  C.  C.  Bancroft  &  Co. 
drew  their  draft  for  account  of 
Swain,  for  the  cost  of  one  hundred 
cases  of  shellac,  and  attached  thereto 
a  bill  of  lading  to  the  order  of  Bail- 
ing Bros.  &  Co.,  deliverable  in  New 
York.     The  draft  was  accepted  and 


paid  by  Baring  Bros.  &  Co.  After 
the  arrival  of  the  goods  Swain  ob- 
tained the  papers  from  Kidder,  Pea- 
body  &  Co.,  as  attorneys  for  Baring 
Bros.  &  Co.,  in  order,  as  he  alleged, 
to  enter  them  at  the  custom-house 
and  have  them  warehoused  in  the 
name  of  Baring  Bros.  &  Co.  But  in- 
stead of  doing  so,  he  entered  them  in 
the  name  of  his  broker,  and  subse- 
quently obtained  a  loan  of  $6,000 
from  the  plaintiff  on  the  security  of 
ninety-five  of  the  cases  of  shellac,  for 
which  he  gave  warehouse  receipts. 
The  case  turned  solely  upon  the  ques- 
tion whether  Swain  was  general 
owner  of  the  shellac  and  Baring 
Bros.  &  Co.  only  pledgees.  The  court 
held  that  the  property  in  the  goods 
was  vested  in  Baring  Bros.  &  Co., 
since  their  money  and  credit  bought 
the  goods,  the  bill  of  lading  was  to 
them,  the  goods  were  expressly  stated 
by  Swain  to  be  held  by  them  as  se- 
curity, and  they  had  the  power  of 
absolute  disposal. 

A  similar  decision,  under  an  almost 
identical  state  of  facts,  was  reached 
in  The  New  Haven  Wire  Co.  Cases 
(supra).  In  one  of  these,  which  was 
typical  of  them  all,  the  New  Haven 
Wire  Co.,  through  its  agents  in  Eng- 
land, purchased  iron  rods  from  Ger- 
man manufacturers  on  the  credit  of 
Baring  Bros.  &  Co.  The  said  agents 
drew  drafts,  accompanied  by  bills  of 
lading,  to  the  order  of  the  drawees, 
on  Baring  Bros.  &  Co.,  which  the 
latter  accepted  and  paid  at  maturity, 


1  Per  Cotton,  L.  J.,  in  Mirabita  v.  Imperial  Ottoman  Bank  (1878),  3  Exch. 
Div.  164,  quoted  post,  §  783. 

42  657 


§§  781,  782.] 


LAW    OF    SALE. 


[BOOK   II. 


§781.  Custom  does  not  affect.— An  alleged  custom 

that  the  title  should  pass  upon  delivery  to  the  carrier  notwith- 
standing that  a  bill  of  lading  has  been  taken  to  the  order  of  the 
seller  and  attached  to  a  draft  forwarded  for  collection  has 
been  held  invalid.1 


782. 


Sending  invoice,  etc.,  to  buyer  does  not  affect 


result. —  The  mere  fact  that  the  seller  has  sent  to  the  buj^er 
an  invoice  of  the  goods  in  which  the  specific  goods  are  de- 
scribed and  the  buyer  is  named  as  consignee  does  not  change 
the  result; 2  for,  though  these  acts  of  themselves  might  amount 
to  an  appropriation,  they  cannot  pass  the  title  in  the  face  of 
the  bill  of  lading  taken  to  the  order  of  the  seller.  The  same 
is  true  also  where  an  unindorsed  copy3  or  duplicate4  of  the 
bill  of  lading  is  sent  to  the  buyer,  although,  as  will  be  seen,5 
where  the  bill  of  lading  is  not  taken  to  the  seller's  order,  but 
the  buyer  is  named  as  consignee,  then  a  duplicate  of  the  bill  of 
lading  sent  to  the  buyer  is  as  effectual  as  the  original.6 


under  the  agreement  that  the  goods, 
together  with  the  bills  of  lading, 
were,  in  consideration  of  the  credit, 
sold,  assigned  and  transferred  to 
them  as  collateral  security,  subject 
only  to  the  right  of  the  New  Haven 
Wire  Co.  to  acquire  title  by  the  com- 
plete and  strict  performance  of  their 
contract  as  to  payment.  The  court 
said:  "The  decisions  are  so  numer- 
ous, and  by  so  many  courts,  to  the 
effect  that  when  a  commercial  cor- 
respondent advances  money  for  the 
purchase  of  property  and  takes  pos- 
session, either  actual  or  symbolical, 
he  becomes  the  owner  thereof,  even 
when  the  advancement  was  made 
and  the  property  was  purchased  at 
the  request  and  for  the  ultimate  use 
of  another,  and  there  is  an  agree- 
ment to  transfer  title  to  that  other 
upon  the  performance  of  conditions 
precedent,  and  ownership  was  taken 


solely  for  the  protection  of  the  ad- 
vancement, that  such  may  be  said  to 
be  the  established  rule." 

J  Charles  v.  Carter  (1896),  96  Tenn. 
607,  86  S.  W.  R.  396. 

2  Jenkyns  v.  Brown  (1850),  14  Q.  B. 
496;  Wait  v.  Baker  (1848),  2  Ex.  1; 
Shepherd  v.  Harrison  (1871),  L.  R.  4 
Q.  B.  194,  4  id.  493,  L.R5H.  L.  116. 
"The  invoice  standing  alone  fur- 
nishes no  proof  of  title."  Pennsyl- 
vania R.  Co.  v.  Stern,  119  Pa.  St.  24, 
4  Am.  St.  R.  626;  Dows  v.  Milwaukee 
Bank,  91  U.  S.  618. 

3  Wait  v.  Baker,  supra;  Brandt  v. 
Bowlby  (1831),  2  B.  &  Ad.  932. 

4Weyand  v.  Railway  Co.  (1888),  75 
Iowa,  573,  9  Am.  St.  R.  504,  39  N.  W. 
R.  899. 

5SeejX>s£,  §788et  seq. 

6  Missouri  Pac.  Ry.  Co.  v.  Heitlen- 
heimer  (1891),  82  Tex.  195,  27  Am.  St, 
R.  861,  17  S.  W.  R.  608. 


658 


€H.  VI.]  RESERVATION    OF   THE    JUS    DISPONENDI.       [§§  783-785. 

§  783.  The  rules  stated. —  In  a  leading  case1  upon  this 

subject  decided  in  the  English  court  of  appeal  in  1878,  Cot- 
ton, L.  J.,  laid  down  the  principles  governing  the  cases  as  fol- 
lows :  "  Under  a  contract  for  sale  of  chattels  not  specific,  the 
property  does  not  pass  to  the  purchaser  unless  there  is  after- 
wards an  appropriation  of  the  specific  chattels  to  pass  under 
the  contract;  that  is,  unless  both  parties  agree  as  to  the  specific 
chattels  in  which  the  property  is  to  pass,  and  nothing  remains 
to  be  done  in  order  to  pass  it.  In  the  case  of  such  a  contract 
the  delivery  by  the  vendor  to  a  common  carrier,  or  (unless  the 
effect  of  the  shipment  is  restricted  by  the  terms  of  the  bill  of 
lading)  shipment  on  board  a  ship  of,  or  chartered  for,  the  pur- 
chaser, is  an  appropriation  sufficient  to  pass  the  property." 

§  7S4-.  .  «If}  however,  the  vendor,  when  shipping  the 

articles  which  he  intends  to  deliver  under  the  contract,  takes 
the  bill  of  lading  to  his  own  order,  and  does  so,  not  as  agent  or 
on  behalf  of  the  purchaser,  but  on  his  own  behalf,  it  is  held  that 
he  thereby  reserves  to  himself  a  power  of  disposing  of  the  prop- 
erty and  that  consequently  there  is  no  final  appropriation,  and 
the  property  does  not  on  shipment  pass  to  the  purchasers. 
When  the  vendor  on  shipment  takes  the  bill  of  lading  to  his 
own  order,  he  has  the  power  of  absolutely  disposing  of  the 
cargo,  and  may  prevent  the  purchaser  from  ever  asserting  any 
right  of  property  therein;  and  accordingly  in  Wait  v.  BaTcer? 
Ellersliaw  v.  Magniac3  and  Gabarron  v.  Kreeft*  (in  each  of 
which  cases  the  vendors  had  dealt  with  the  bills  of  lading  for 
their  own  benefit),  the  decisions  were  that  the  purchaser  had 
no  property  in  the  goods,  though  he  had  offered  to  accept  bills 
for  or  had  paid  the  price." 

§  785.  .  "  So,  if  the  vendor  deals  with  or  claims  to  re- 
tain the  bill  of  lading  in  order  to  secure  the  contract  price,  as 
when  he  sends  forward  the  bill  of  lading  with  a  bill  of  exchange 
attached,  with  directions  that  the  bill  of  lading  is  not  to  be 

i  Mirabita    v.    Imperial    Ottoman  22Ex.,  1. 

Bank  (1878),  3  Ex.  Div.  164,  31  Eng.  R.  3  6  Ex.  570. 

(Moak's),  200.  4  L.  R.  10  Ex.  274,  14  Eng.  R.  562. 

659 


§§  78 6,  787.]  law  of  sale.  [book  ii. 

delivered  to  the  purchaser  till  acceptance  or  payment  of  the 
bill  of  exchange,  the  appropriation  is  not  absolute,  but,  until 
acceptance  of  the  draft,  or  payment  or  tender  of  the  price,  is 
conditional  only,  and  until  such  acceptance  or  payment  or 
tender  the  property  in  the  goods  does  not  pass  to  the  purchaser; 
and  so  it  was  decided  in  Turner  v.  Trustees  of  Liverpool  Docks,1 
Shepherd  v.  Harrison 2  and  Ogg  v.  Shuter." 3 

§  786.  .  "But  if  the  bill  of  lading  has  been  dealt  with  only 

to  secure  the  contract  price,  there  is  neither  principle  nor  au- 
thority for  holding  that  in"  such  a  case  the  goods  shipped  for 
the  purpose  of  completing  the  contract  do  not,  on  payment  or 
tender  by  the  purchaser  of  the  contract  price,  vest  in  him. 
When  this  occurs  there  is  a  performance  of  the  condition  sub- 
ject to  which  the  appropriation  was  made,  and  everything 
which,  according  to  the  intention  of  the  parties,  is  necessary  to 
transfer  the  property  is  done ;  and,  in  my  opinion,  under  such 
circumstances,  the  property  does,  on  payment  or  tender  of  the 
price,  pass  to  the  purchaser." 

§  787.  Resume'  of  English  cases. —  The  rules  to  be  de- 
duced from  the  English  cases  are  stated  by  Mr.  Benjamin4  as 
follows: 

"  First.  Where  goods  are  delivered  by  the  vendor,  in  pursu- 
ance of  an  order,  to  a  common  carrier  for  delivery  to  the 
buyer,  the  delivery  to  the  carrier  passes  the  property,  he  being 
the  agent  of  the  vendee  to  receive  it,  and  the  delivery  to  him 
being  equivalent  to  a  delivery  to  the  vendee.5 

"Secondly.  Where  goods  are  delivered  on  board  of  a  vessel 
to  be  carried,  and  a  bill  of  lading  is  taken,  the  delivery  by  the 
vendor  is  not  a  delivery  to  the  buyer,  but  to  the  captain  as 

1  6  Ex.  543.  Dutton  v.  Solomonson,  3  B.  &  P.  582; 

2  L.  R.  4  Q.  B.  196.  London  &  Northwestern  Ry.  Co.  v. 

3  1  C.  P.  Div.  47,  15  Eng.  R.  231.  Bartlett,  7  H.  &  N.  400;  Dunlop  v. 

4  Benjamin  on  Sales,  §  399.  Lambert,  6  CI.  &  Fin.  600;  Cork  Dis- 

5  Citing  "Wait  v.  Baker,  2   Ex.  1.  tilleries  Co.  v.  Great  Southern  Ry. 
"See  also  Dawes  v.  Peck,  8  T.  R.  330;  Co.,  L.  R.  7  H.  L  269." 

600 


CH.  VI.]  RESERVATION    OF   THE    JUS   DISPONENDI.  [§  78 T. 

bailee  for  delivery  to  the  person  indicated  by  the  bill  of  lading 
as  the  one  for  whom  they  are  to  be  carried.1 

"Thirdly.  The  fact  of  making  the  bill  of  lading  deliverable 
to  the  order  of  the  vendor  is,  when  not  rebutted  by  evidence 
to  the  contrary,  almost  decisive  to  show  his  intention  to  re- 
serve the  jus  disponendi  and  to  prevent  the  property  from 
passing  to  the  vendee.2 

"Fourthly.  The  prima  facie  conclusion  that  the  vendor  re- 
serves the  jus  disponendi  when  the  bill  of  lading  is  to  his  order 
may  be  rebutted  by  proof  that  in  so  doing  he  acted  as  agent 
for  the  vendee  and  did  not  intend  to  retain  control  of  the  prop- 
erty; and  it  is  for  the  jury  to  determine  as  a  question  of  fact 
what  the  real  intention  was.3 

"Fifthly.  That  although,  as  a  general  rule,  the  delivery  of 
goods  by  the  vendor,  on  board  the  purchaser's  own  ship,  is  a 
delivery  to  the  purchaser  and  passes  the  property,  yet  the 
vendor  may  by  special  terms  restrain  the  effect  of  such  de- 
livery and  reserve  the  jus  disponendi,  even  in  cases  where  the 
bills  of  lading  show  that  the  goods  are  free  of  freight  because 
owner's  property.4  And  on  a  sale  of  goods  which  are  not  specific, 
although  the  goods  have  been  delivered  on  board  a  ship  of,  or 

i"This  principle,"   continues  the  Van  Casteel  v.   Booker,  2  Ex.  691; 

text  quoted,  "runs  through  all  the  Jenkyns    v.    Brown,    14   Q.   B.  496; 

cases,  and  is  clearly  enunciated  by  Shepherd  v.  Harrison,  supra;  Gabar- 

Parke,  B.,  in  Wait  v.  Baker,  supra;  ron  v.  Kreeft,  supra;  Ogg  v.  Shuter, 

by  Byles,  J.,  in  Moakes  v.  Nicholson,  1  C.  P.  Div.  47;  and  Ex  parte  Ban- 

19  C.  B.  (N.  S.)  290;  by  Brarnwell  and  ner,  2  Ch.  Div.  278. 

Cleasby,  BB.,  in  Gabarron  v.  Kreeft,  3  Citing    Van    Casteel  v.   Booker, 

L.  R.  10  Ex.,  at  pp.  281  and  285;  and  supra;  Brown  v.  Hare,  4  H.  &  N.  822; 

by  Cotton,  L.  J.,  in  Mirabita  v.  lm-  Joyce  v.  Swan,  17   C.  B.  (N.  S.)  84; 

perial  Ottoman  Bank,  3  Ex.  D.  (C.  A.),  Moakes  v.  Nicholson,  supra. 

at  p.  172.    And  the  above  two  points  4  Citing  Turner  v.  Liverpool  Dock 

were  approved  as  an  accurate  state-  Trustees,   6   Ex.   543;    Ellershaw  v. 

ment  of  the  law  by  Lord  Chelms-  Magniac,  supra;  Brandt  v.  Bowlby, 

ford  in  Shepherd  v.  Harrison,  L.  R.  2  B.  &  Ad.  932;  Van  Casteel  v.  Booker, 

4_Q.  B.  196.  in  L.  R.  4  Q.  B.  493,  in  supra;  Moakes  v.  Nicholson,  supra; 

L.  R.  5  H.  L.  116/'  Falk  v.  Fletcher,  18  C.  B.  (N  S.)  403; 

2  Citing  Wilmshurst  v.  Bowker,  2  Schotsmans  v.  Railway  Co.,  2  Ch.  332; 

M.  &  G.  792;  Ellershaw  v.  Magniac,  Gum  m  v.  Tyrie,  33  L.  J.  Q.  B.  97,  34 

6  Ex.  570;  Wait  v.  Baker,  2  Ex.  1;  id.  124. 

661 


§  788.]  LAW  OF  SALE.  [book  II, 

chartered  for,  the  purchaser,  yet,  in  the  absence  of  any  appro- 
priation of  the  goods  in  fulfillment  of  the  contract  previous  to 
shipment,  the  fact  that  the  vendor  has  taken  a  bill  of  lading 
making  the  goods  deliverable  to  his  own  order,  or  that  of  a 
third  person,  will  prevent  the  property  in  them  from  passing 
to  the  purchaser.2 

"-Sixthly.  That  where  a  bill  of  exchange  for  the  price  of 
goods  is  inclosed  to  the  buyer  for  acceptance,  together  with 
the  bill  of  lading,  the  buyer  cannot  retain  the  bill  of  lading 
unless  he  accepts  the  bill  of  exchange;  and  if  he  refuse  accept- 
ance, he  acquires  no  right  to  the  bill  of  lading  or  the  goods  of 
which  it  is  the  symbol.2  And  the  vendor  may  exercise  his  jus 
disponendi  by  selling  or  otherwise  disposing  of  the  goods,  so 
long  at  least  as  the  buyer  remains  in  default.3 

"Seventhly.  But  although  the  vendor  may  intend  the  trans- 
fer of  the  property  to  be  conditional  upon  the  buyer's  accept- 
ance of  the  bill  of  exchange,  yet,  if  he  puts  into  the  post 
addressed  to  the  buyer  a  bill  of  lading  making  the  goods  de- 
liverable to  the  buyer's  order,  he  thereby  abandons  all  control 
over  the  goods,  and  the  property  thereupon  vests  uncondition- 
ally in  the  buyer  and  does  not  revest  in  the  vendor  on  the 
buyer's  failure  or  refusal  to  accept  the  bill  of  exchange.4 

"Eighthly.  When  the  vendor  deals  with  the  bill  of  lading 
only  to  secure  the  contract  price,  as,  e.  g.,  by  depositing  it  with 
bankers  who  have  discounted  the  bill  of  exchange,  then  the 
property  vests  in  the  buyer  upon  the  payment  or  tender  by 
him  of  the  contract  price." 5 

§788.  Bill  of  lading  consigning  goods  to  buyer.— But  a 

question  more  difficult  than  those  considered  in  the  foregoing 
sections  is  presented  where  the  bill  of  lading,  instead  of  mak- 
ing the  goods  deliverable  to  the  seller  or  his  order,  simply  de- 

1  Citing  Gabarron  v.  Kreeft,  supra,     distinguishing  Shepherd  v.  Harrison, 

2  Citing  Shepherd  v.  Harrison,  su-    supra. 

pra;  Ogg  v.  Shuter,  supra;  Revv  v.  5  Citing  Mirabita  v.  Imperial  Otto- 
Payne,  1  C.  P.  D.  47.  man  Bank,  3  Ex.  Div.  1G4,  determin- 
ating Ogg  v.  Shuter,  supra.  ing  a  point  left  undecided  by  Lord 
4  Citing  Ex  parte  Banner,  supra;  Cairns  in  Ogg  v.  Shuter,  supra. 

mi 


CH.  VI.] 


RESERVATION    OF   THE    JUS   DISPONENDI. 


[§  7S8. 


clares  that,  having  been  received  for  carriage  from  the  seller, 
they  are  consigned  to  the  buyer.  Upon  this  subject  it  is  said 
in  a  leading  case:1  "  Where  goods  are  delivered  by  a  vendor  to 
a  common  carrier,  consigned  to  the  vendee,  the  question  whether 


I  Emery's  Sons  v.  Irving  National 
Bank  (1874),  25  Ohio  St.  360,  18  Am. 
R.  299.  In  this  case  it  appeared  that 
one  Mirrielees  of  New  York  had  been 
in  the  habit  of  buying  goods  upon 
the  order  of  Thos.  Emery's  Sons  of 
Cincinnati,  and  shipping  those  goods 
to  them,  drawing  drafts  upon  them 
with  the  bill  of  lading  attached.  As 
the  result  of  previous  transactions 
Mirrielees  was  indebted  to  Emery's 
Sons.  On  March  24,  1869,  he  shipped 
three  casks  of  stearine  to  them,  tak- 
ing from  the  carrier  a  bill  of  lading 
or  receipt  which  read  as  follows: 
"  Received  from  G.  M.  Mirrielees  the 
following  packages  (contents  and 
value  unknown)  in  apparent  good 
order,  and  marked  as  in  the  margin: 
(3)  three  casks  stearine.  For  Thos. 
Emery's  Sons."  In  the  margin  was 
written  "  Cin.,  O."  On  the  same  day 
he  drew  upon  them  as  follows: 
"$299Ty5  New  York, 

March  24,  1869. 

"  On  demand,  pay  to  the  order  of 
myself,  two  hundred  and  ninety-nine 
T%V/  dollars,  value  received,and  charge 
the  same  to  account  of  three  casks 
stearine.  G.  M.  Mirrielees. 

"  To  Thos.  Emery's  Sons,  Cincinnati." 

On  March  26th  he  shipped  ten 
casks  of  stearine  under  a  substan- 
tially similar  bill  of  lading  (except 
that  the  words  "  Thos.  Emery's  Sons  " 
appeared  in  the  margin  instead  of  in 
the  body), and  drew  upon  them  a  draft 
similar  to  the  other  for  $1,098  ftfe  He 
wrote  Emery's  Sons  of  the  shipments, 
inclosing  invoices  and  advising  them 
of  the  drafts.   He  attached  these  bills 


of  lading  to  the  drafts,  respectively, 
and  sold  the  drafts  to  the  Irving  Na- 
tional Bank  of  New  York.  The  bank 
sent  the  drafts  on  to  Cincinnati  for 
collection,  but  Emery's  Sons  refused 
to  accept  or  pay  them.  After  the 
bills  of  lading  and  drafts  had  been 
transferred  to  the  bank,  Emery's 
Sons  obtained  the  stearine  from  the 
carrier  and  sold  it,  refusing  to  ac- 
count to  the  bank,  but  claiming  the 
right  to  apply  the  proceeds  on  the 
indebtedness  of  Mirrielees  to  them. 
The  action  was  by  the  bank  against 
Emery's  Sons  to  recover  the  proceeds. 
It  was  held,  in  an  opinion  from  which 
the  quotation  of  the  text  was  taken, 
that  the  bank  was  entitled  to  recover, 
though  a  judgment  in  its  favor  was 
reversed  for  errors  in  procedure. 

In  First  National  Bank  v.  Dearborn 
(1874),  115  Mass.  219,  15  Am.  R.  92,  it 
appeared  that  one  Parks  in  Wisconsin 
had  been  in  the  habit  of  shipping 
flour  to  Harvey  Scudder  &  Co.  of 
Boston,  drawing  upon  them  for  the 
price.  On  October  17,  1870,  he  de- 
livered to  a  carrier  in  Wisconsin  one 
hundred  barrels  of  flour  and  received 
a  receipt  in  the  following  terms: 
"Received  from  R.  G.  Parks  &  Co. 
one  hundred  barrels  of  flour  branded 
W.,  consigned  to  Harvey  Scudder  & 
Co.,  Boston,  Mass.,  via  Green  Bay." 
At  the  same  time  Parks  made  a  draft 
on  Scudder  &  Co.  for  $400,  to  the 
order  of  the  cashier  of  the  plaintiff 
bank,  and  delivered  to  the  bank  the 
said  receipt.  The  bank  thereupon 
placed  the  $400  to  Parks'  credit.  The 
bank  sent  the  draft  and  receipt  to 


663 


TS8.] 


LAW    OF    SALE. 


[book  II. 


the  title  thereby  passes  from  the  vendor  to  the  vendee  depends 
upon  the  intention  of  the  vendor,  which  intention  is  to  be  gath- 
ered from  all  the  circumstances  of  the  transaction. 

"If  the  goods  be  shipped  in  pursuance  of  the  purchaser's 


Boston,  where  Scudder  &  Co.  refused 
to  accept  the  draft  and  disclaimed 
any  interest  in  it,  and  the  flour  on 
arrival  was  attached  by  a  creditor 
of  Parks  as  his  property:  The  action 
was  replevin  by  the  bank  against  the 
officer.  It  was  admitted  that  Parks 
delivered  the  receipt  to  the  bank  for 
the  purpose  of  securing  the  $400,  and 
that  it  was  the  understanding  of  the 
parties  that  the  flour  was  transferred 
as  security  for  the  money.  Said  the 
court,  per  Ames,  J:  "If  there  was  a 
sufficient  delivery  of  the  property  to 
the  plaintiff  there  was  nothing  to 
hinder  the  intention  of  the  parties 
from  going  into  full  effect.  The 
character  and  situation  of  the  prop- 
erty at  the  time  of  this  transaction 
were  such  that  an  actual  delivery 
was  impossible.  A  constructive  or 
symbolical  delivery  was  all  that  the 
circumstances  allowed;  but  a  de- 
livery of  that  nature,  if  properly 
made,  would  have  been  sufficient  to 
give  to  the  plaintiff  corporation  the 
title  to  the  property  and  an  imme- 
diate right  of  possession,  which  it 
could  maintain,  not  only  against 
Parks  himself,  but  also  against  his 
creditors.  Tux  worth  v.  Moore,  9  Pick. 
(Mass.)  347,  20  Am.  Dec.  479;  Fetty- 
place  v.  Dutch,  13  Pick.  388,  23  Am. 
Dec.  688;  Whipple  v.  Thayer,  16  Pick. 
25,  26  Am.  Dec.  626;  Carter  v.  Wil- 
lard,  19  Pick.  1.  The  delivery  of  the 
evidences  of  title,  with  orders  in- 
dorsed upon  them,  would  be  equiv- 
alent to  the  delivery  of  the  property 
itself.  Gibson  v.  Stevens,  8  How. 
(U.  S.)  384;  Nathan  v.  Giles,  5  Taunt. 


558;  National  Bank  of  Cairo  v. 
Crocker,  111  Mass.  163,  and  cases 
there  cited.  All  that  would  be  neces- 
sary in  such  a  case  would  be  that 
the  thing  actually  delivered  should 
have  been  intended  as  a  symbol  of 
the  property  sold.  .  ,  .  It  is  true 
that  a  receipt  of  this  kind  does  not 
purport  on  its  face  to  have  the  quasi- 
negotiable  character  which  is  some- 
times said  to  belong  to  bills  of  lading 
in  the  ordinary  form;  neither  does  it 
purport  in  terms  to  be  good  to  the 
bearer.  But  independently  of  any 
indorsement,  or  formal  transfer  in 
writing,  the  possession  and  produc- 
tion of  it  would  be  evidence  indicat- 
ing to  the  carrier  that  the  bank  was 
entitled  to  demand  the  property,  and 
that  he  would  be  justified  in  deliver- 
ing it  to  them.  There  are  cases  in 
which  the  delivery  of  a  receipt  of 
this  nature,  though  not  indorsed  or 
formally  transferred,  yet  intended 
as  a  transfer,  has  been  held  to  be  a 
good  symbolical  delivery  of  the  prop- 
erty described  in  it.  In  Haille  v. 
Smith,  1  B.  &  P.  563,  Eyre,  C.  J.,  uses 
this  language:  '  I  see  no  reason  why 
we  should  not  expound  this  doctrine 
of  transfer  very  largely  upon  the 
agreement  of  the  parties  and  iipon 
their  intent  to  carry  the  substance 
of  that  agreement  into  execution.' 
In  Allen  v.  Williams,  12  Pick.  (Mass.) 
297,  301,  Shaw,  C.  J.,  in  delivering  the 
judgment  of  the  court  says:  '  Even  a 
sale  or  pledge  of  the  property  with- 
out a  formal  bill  of  lading,  by  the 
shipper,  would  operate  as  a  good  as- 
signment of  the  property;   and  the 


664 


CH.  VI.] 


RESERVATION    OF    THE    JUS    DISPONENDI. 


[§  789. 


order  and  at  bis  risk,  or  if  it  otherwise  appear  to  be  the  inten- 
tion of  the  shipper  to  part  with  the  title,  the  carrier  becomes 
the  agent  of  the  consignee,  and  the  delivery  to  him  is  equiva- 
lent to  a  delivery  to  the  purchaser.  If  the  vendor,  however, 
in  making  the  consignment  and  delivering  the  goods  to  the 
carrier,  does  not  intend  to  part  with  his  title  to  and  control 
over  them,  the  carrier  must  be  regarded  as  the  agent  of  the 
consignor  and  not  of  the  consignee. 

§  789.  "  In  all  such  transactions,"  continued  the  court,  "  the 
bill  of  lading  is  an  important  item,  of  proof  as  to  the  intention, 


delivery  of  an  informal  or  unin- 
dorsed bill  of  lading,  or  other  docu- 
mentary evidence  of  the  shipper's 
property,  would  be  a  good  symbolical 
delivery,  so  as  to  vest  the  property  in 
the  plaintiff.'  It  is  true  that  he  adds 
that  it  was  not  necessary  to  place 
the  case  upon  that  ground.  But  this 
dictum  was  cited  with  entire  appro- 
bation, in  a  case  raising  that  exact 
point,  in  the  court  of  appeals  of  the 
state  of  New  York.  Bank  of  Roches- 
ter v.  Jones,  4  N.  Y.  497,  55  Am.  Dec. 
290.  In  that  case,  as  in  this,  the 
plaintiff  had  discounted  a  draft 
drawn  against  a  quantity  of  flour, 
and  its  title,  as  in  this  case,  depended 
upon  a  carrier's  receipt,  delivered  to 
it  without  any  written  indorsement. 
The  court  held  that  the  plaintiff 
thereby  acquired  a  sufficient  title  to 
the  property,  and  could  call  the  con- 
signee to  account  for  it,  he  having 
converted  the  property  to  his  own 
use,  without  accepting  the  draft.  It 
is  not  necessary  to  hold  that  the 
plaintiff  was  absolute  owner  of  the 
property;  it  is  enough  that  it  had  a 
right  of  property  and  of  possession  to 
secure  the  payment  of  the  particular 
draft;  and  the  right  of  the  former 
owner,  Parks,  in  the  specific  prop- 
erty, had  become  divested,  leaving 


him  only  a  right  in  the  surplus 
money  which  might  remain  after  a 
sale  of  the  flour  and  a  payment  of 
the  draft  from  the  proceeds.  De 
Wolf  v.  Gardner,  12  Cush.  (Mass.)  19, 
24,  59  Am.  Dec.  165."  Following  and 
approving  First  National  Bank  v. 
Dearborn;  see  National  Bank  v. 
Bayley  (1874),  115  Mass.  228:  New- 
comb  v.  Railroad  Co.  (1874),  115  Mass. 
230;  Alderman  v.  Railroad  Co.  (1874), 
115  Mass.  233.  See  also  Douglas  v. 
People's  Bank  (1887),  86  Ky.  176,  9 
Am.  St.  R.  276,  5  S.  W.  R.  420;  Mer- 
chants' National  Bank  v.Bangs(1869), 
102  Mass.  291;  Hobart  v.  Littlefield 
(1882),  13  R.  I.  341;  Halsey  v.  Warden 
(1881),  25  Kan.  128;  Wigton  v.  Bow- 
ley  (1881),  130  Mass.  252;  Robinson  v. 
Pogue  (1888),  86  Ala.  257,  5  S.  R.  685; 
The  St.  Joze  Indiano  (1816),  1  Wheat, 
208. 

[But  in  Hallgarten  v.  Oldham 
(1883),  135  Mass.  1,  46  Am.  R.  433,  the 
court  question  First  National  Bank  v. 
Dearborn,  supra,  on  the  ground  that, 
in  principle,  the  transfer  of  the  docu- 
ment can  only  be  sufficient  when  the 
document  originally  was  made  "  to 
order  "  or  the  like,  or  the  issuer  has 
subsequently  consented  to  become 
the  purchaser's  bailee.] 


665 


§   790.]  LAW    OF    SALE.  [BOOK    II. 

but  it  is  not  necessarity  conclusive  of  the  question.  If  the  bill 
of  lading  shows  that  the  consignment  was  made  for  the  benefit 
of  the  consignor  or  his  order,  it  is  very  strong  proof  of  his  in- 
tention to  reserve  the  jus  dlsponendi.  And  on  the  other  hand, 
if  the  bill  of  lading  shows  that  the  shipment  is  made  for  the 
benefit  of  the  consignee,  it  is  almost  decisive  of  the  consignor's 
intention  to  part  with  the  ownership  of  the  property.  If  the 
bill  of  lading  does  not  disclose  the  person  for  whose  benefit  the 
consignment  is  made,  it  is  of  less  weight  on  the  question  of 
the  shipper's  intention.  We  have  no  doubt,  however,  that  if  the 
bill  of  lading  shows  a  consignment  by  vendor  to  vendee,  and 
no  other  circumstance  appears  as  to  the  intention,  it  will  be 
taken  as  prima  facie  evidence  of  an  unconditional  delivery  to 
the  vendee. 

"  As  between  the  consignor  and  consignee,  the  bill  of  lading 
cannot  be  regarded  as  a  contract  in  writing,  but  merely  as  an 
admission  or  declaration  on  the  part  of  the  consignor  as  to  his 
purpose,  at  the  time,  in  making  the  shipment,  and  such  admis- 
sion is  subject  to  be  rebutted  by  other  circumstances  connected 
with  the  transaction."       * 

§  790.  Transfer  of  bill  of  lading  during  transit.— Con- 
tinuing in  the  case  referred  to  in  the  last  section,1  the  court 
further  says:  "By  the  rules  of  commercial  law,  bills  of  lading 
are  regarded  as  symbols  of  the  property  therein  described,  and 
the  delivery  of  such  bill  by  one  having  an  interest  in  or  a  right 
to  control  the  property  is  equivalent  to  a  delivery  of  the  prop- 
erty itself.  A  consignor  who  has  reserved  the^s  dlsponendi 
may  effectuate  a  sale  or  pledge  of  the  property  consigned,  by 
delivery  of  the  bill  of  sale  to  the  purchaser  or  pledgee,  as  com- 
pletely as  if  the  property  were,  in  fact,  delivered.  If  such 
transfer  of  the  bill  of  lading  be  made  after  the  property  has 
passed  into  the  actual  possession  of  the  consignee,  the  trans- 
feree of  the  bill  takes  it  subject  to  any  right  or  lien  which  the 
consignee  may  have  acquired  by  reason  of  his  possession.    But 

1  Emery's  Sons  v.  Irving  National  Bank,  25  Ohio  St.  SCO,  18  Am.  R.  299, 
stated  in  preceding  note. 


CH.  VI.]  RESERVATION    OF   THE    JUS   DISPONENDI.       [§§  791,  792. 

if  the  bill  of  lading  be  transferred  by  way  of  sale  or  pledge  to 
a  third  person,  before  the  property  comes  into  the  possession 
of  the  consignee,  the  consignee  takes  the  property  subject  to 
any  right  which  the  transferee  of  the  bill  may  have  acquired 
by  the  symbolic  delivery  of  the  property  to  him.  The  principle 
on  which  the  title  to  the  goods  maybe  transferred  by  transfer 
of  the  bill  of  lading  is  wholly  distinct  from  that  on  which  the 
right  of  stoppage  in  transitu  rests.  The  right  to  stop  goods  in 
transit  exists  only  where  the  vendor  has  consigned  them  to  the 
buyer  under  circumstances  which  vest  the  title  in  the  buyer. 
The  transfer  of  goods  by  delivering  the  bill  of  lading  can  be 
made  only  in  cases  where  the  vendor  has  not  parted  with  the 
title." 

§  791,  — . — .  It  is  to  be  kept  in  mind  that  the  case  from  which 
the  foregoing  language  is  quoted  was  one  in  which  the  bill  of 
lading  had  not  consigned  the  goods  to  the  seller's  order,  but 
was  a  mere  receipt  naming  the  buyer  as  the  consignee.  Where 
the  bill  of  lading  is  expressly  taken  to  the  seller's  order,  there 
can,  of  course,  be  no  doubt  about  his  power  to  transfer  the  title 
by  assignment;  but  where  the  seller  is  simply  named  as  con- 
signor and  the  buyer  as  the  consignee,  then  the  language  of  the 
foregoing  section  is  applicable.  In  another  case l  of  this  latter 
sort  the  court  said:  "If  a  bill  of  lading  in  favor  of  the  con- 
signee, although  such  consignee  be  the  agent  or  factor  of  the 
consignor,  may  be  transferred  by  the  consignor  by  delivery  for 
a  valuable  consideration,  we  can  conceive  of  no  reason,  in  the 
absence  of  statutory  inhibition,  why  such  bill  in  favor  of  a  con- 
signee who  is  a  purchaser,  when  retained  by  the  consignor,  may 
not  be  transferred  in  the  same  way.  We  can  see  no  difference 
in  principle.  If  extraneous  evidence  is  admissible  to  show  the 
real  intent  of  the  consignor  as  to  the  retention  of  the  title  of 
the  goods  covered  by  the  bill  in  the  one  case,  it  must  be  in  the 
other." 

§  790,  .  Where,  therefore,  the  seller  by  either  method 

has  reserved  the  jus  disponendi,  he  may,  by  assignment  of  the 

i  Scharff  v.  Meyer  (1895),  133  Mo.  428,  34  S.  W.  R.  858,  54  Am.  St.  R.  672. 

667 


§  T02.] 


LAW    OF    SALE. 


[book  ir. 


bill  of  lading,  sell,  assign  or  pledge  his  interest  in  the  goods  as 
fully  as  by  a  delivery  of  the  goods  themselves,  and  the  pledgee 
or  assignee  for  value  will  obtain  a  good  title,  even  though  such 
a  transfer  by  the  seller  were  in  violation  of  his  contract  with 
the  buyer.1 

Such  dealings  with  the  bill  of  lading  —  particularly  in  pledg- 
ing it  as  security  for  discounts  or  advancements  upon  bills  of 
exchange  drawn  against  the  goods  —  are  of  daily  occurrence, 
and  the  rights  of  the  assignee  or  pledgee  are  constantly 
enforced.'3 


iPer  Bramwell,  L.  J.,  in  Mirabita 
v.  Imperial  Ottoman  Bank  (1878),  3 
Ex.  Div.  164,  citing  AVait  v.  Baker,  2 
Ex.  1;  Gabarron  v.  Kreeft,  L.  R.  10 
Ex.  274. 

-  When  the  goods  are  delivered  to 
the  carrier,  but  the  right  of  disposi- 
tion is  retained  in  the  seller  by  the 
bill  of  lading  or  receipt,  then  the  de- 
livery of  the  bill  or  receipt,  even  with- 
out indorsement,  for  value  transfers 
the  property.  Scharff  v.  Meyer  (1895), 
133  Mo.  428,  34  S.  W.  R.  858,  54  Am. 
St.  R.  672.  To  same  effect:  Means  v. 
Bank  of  Randall  (1892),  146  U.  S.  620; 
Dows  v.  National  Exchange  Bank 
1 875  .  91  U.  S.  618;  Union  Pac.  R.  Co. 
v.  Johnson  (1895).  45  Neb.  57.  63  X.  W. 
R.  144;  Bank  of  Rochester  v.  Jones 
(1851),  4  N  Y.  497,  55  Am.  Dec.  290: 
In  re  Non-Magnetic  Watch  Co.  (1895), 
89  Hun,  196;  Mich.  Cent.  R.  Co.  v. 
Phillips  (1871),  60  111-  190;  Holmes  v. 
German  Bank  (1878),  87  Pa.  St.  525: 
Holmes  v.  Bailey  (1879),  92  Pa.  St.  57: 
First  Nat.  Bank  v.  Pettit  (1872),  9 
Heisk  (56  Tenn.)  447;  Forbes  v.  Rail- 
road Co.  H882),  133  Mass.  154;  Com- 
mercial Bank  v.  Pfeiffer  (1888),  108 
N.  Y.  242.  15  N.  E.  R.  311;  First  Nat. 
Bank  v.  Kelley  (1874),  57  N  Y.  34; 
Richardson  v.  Nathan  (1895),  167  Pa. 
St.  513,  31  Atl.  R.  740;  Ha  haway  v. 


Haynes  (1878),  124  Mass.  311;  Cayuga 
Nat,  Bank  v.  Daniels  (1872),- 47  N.  Y. 
631;  Heiskell  v.  Bank  (1879),  89  Pa. 
St.  155. 

In  Mich.  Cent.  R.  Co.  v.  Phillips 
(1871),  60  III.  ISO  {siqyra),  a  number  of 
barrels  of  wine  were  shipped  to  one 
Ames  and  hauled  to  his  store,  with 
the  evident  understanding  that  pay- 
ment was  to  be  a  condition  precedent 
to  the  vesting  of  the  title.  Upon  ob- 
taining possession  of  the  goods  Ames 
shipped  them  on  board  a  car  of  the 
Michigan  Central  Railroad,  consigned 
to  a  party  in  New  York,  and  drew  a 
draft  against  them,  which,  with  bill 
of  lading  attached,  was  discounted 
by  a  Chicago  bank.  The  bill  of  lad- 
ing was  not  indorsed,  and  it  was  ob- 
jected that  on  this  account  no  valid 
transfer  of  title  took  place,  even  as- 
suming that  Ames  was  in  a  position 
to  transfer  title.  The  court  held  that 
Ames  could  transfer  a  good  title, 
since  he  had  been  intrusted  with  the 
indicia  of  ownership  by  his  vendor, 
and  that  the  bank  was  a  bona  fide 
purchaser  for  value.  Delivery  of  the 
bill  was  tantamount  to  delivery  of 
the  goods,  and  was  as  efficacious  to 
vest  title;  and  the  fact  of  its  being 
unindorsed  would  not.  as  in  the  case 
of  a  negotiable  instrument,  convey 


66S 


CH.  VI.] 


RESERVATION    OF    THE    JUS    DISPONEXDI. 


[§    T93. 


,5  793.  How  when  goods  sent  C.  0.  D. —  "Whether  the  seller, 
who  has  delivered  goods  to  the  carrier  for  transportation  to 
the  buyer,  thereby  transfers  the  title,  if  he  send  them  C.  O.  D., 
is  a  question  upon  which,  it  has  been  seen,  the  authorities  are 


only  an  equitable  interest,  but  the 
legal  title  itself  pass 

In  Commercial  Bank  v.  Pfeiffer 
1888),  1  -  N.  Y.  242,  15  N.  E.  R.  311 
{supra  .  the  defendants,  who  were 
dealers  in  live-stock  in  Buffalo,  agreed 
with  the  plaintiff,  a  banking  corpo- 
ration of  Iowa,  to  accept  and  pay  the 
sight  drafts  of  one  Quick  for  cattle 
and  hogs  purchased  by  him,  after 
notification  of  shipment  and  receipt 
of  bills  of  lading.  Under  this  arrange- 
ment a  shipment  was  made  and  a 
sight  draft  for  $5,63L*82  was  drawn 
by  Quick  to  the  order  of  plaintiff's 
cashier  and  sent  to  defendants  with 
bill  of  lading  attached.  Defendants 
obtained  the  live-stock  without  the 
production  of  the  bill  of  lading,  sold 
the  same,  and  turned  over  the  pro- 
ceeds of  the  sale.  s5.-249.1T.  to  the 
holder  of  the  draft  and  bill  of  lading. 
The  difference  between  the  face  of 
the  draft  and  the  amount  paid  on  it, 
§380.35,  the  defendants  claimed  the 
right  to  retain  on  account  of  a  de- 
mand held  by  them  against  Quick 
for  a  loss  sustained  on  a  previous 
shipment.  But  the  court  held  that 
the  plaintiff,  who  discounted  the 
draft  for  Quick  and  took  the  bill  of 
lading,  had  a  special  interest  in  the 
property  to  the  amount  of  the  draft, 
and  the  defendants  had  no  right  to 
receive  and  retain  the  property  and 
dishonor  the  draft.  The  court  said: 
"It  is  settled  beyond  dispute  in  this 
State  that  the  discount  of  a  draft 
drawn  by  a  consignor  upon  his  con- 
signee, which  is  accompanied  by  the 
delivery  of  a   bill  of  lading  to  the 


party  making  the  advance,  passes  to 
such  party  not  only  the  legal  title  to 
such  property,  but,  in  the  eye  of  the 
law,  the  transfer  of  the  bill  of  lading 
is  regarded  as  an  actual  delivery  and 
an  actual  change  of  possession  of  the 
property." 

The  same  question,  under  practi- 
cally the  same  state  of  facts,  was 
^•red  in  Holmes  v.  German 
Bank  1878  M  Pa.  St  525  [supra), 
and  the  court  held  that  the  defend- 
ants could  not  retain  the  proceeds  of 
a  sale  of  the  goods  consigned,  on  ac- 
count of  an  old  debt  owed  by  the 
consignor  to  them;  for  the  bank, 
which  had  discounted  a  draft  drawn 
by  the  consignor  against  the  goods 
and  taken  the  bill  of  lading  as  se- 
curity, had  thereby  appropriated  the 
proceeds  of  the  sale  to  the  satisfac- 
tion of  its  demand,  and  this  was  true 
whether  the  bill  of  lading  was  in- 
dorsed or  not. 

In  Forbes  v.  Railroad  Co. 
133  Mass.  15  a  firm  of  grain 

dealers  in  Chicago,  in  response  to  an 
order,  forwarded  fifty  carloads  of 
corn  to  Boston,  consigned  by  bill  of 
lading  to  their  own  order  at  Boston. 
A  draft  upon  the  purchasers,  to- 
gether with  the  bill  of  lading,  was 
sent  to  a  Boston  bank,  and  upon  pay- 
ment by  the  purchasers  of  the 
amount  of  the  draft  it  was  delivered, 
with  the  bill  of  lading,  to  them.  Im- 
mediately thereafter  the  draft  and 
bill  of  lading  were  indorsed  over  to 
the  plaintiffs,  as  security  for  an  ad- 
vance then  made  by  the  plaintiffs  to 
the    full  amount  of  the   draft.    It 


609 


§  794.] 


LAW  OF  SALE. 


[BOOK  II. 


much  in  conflict.1  The  practice  of  sending  goods  C.  O.  D.  is 
one  quite  largely  confined  to  those  cases  in  which  the  carrier 
is  an  express  company,  though  it  is,  of  course,  available  in  the 
case  of  other  carriers. 

It  is  insisted  in  some  cases,  as  has  been  already  noticed,  that 
the  delivery  to  the  carrier  has  the  usual  effect  to  pass  the  title, 
and  that  the  result  of  the  instructions  to  deliver  only  upon  pay- 
ment, or  to  collect  on  delivery,  is  simply  to  make  the  carrier 
the  agent  of  the  seller  to  collect  and  return  the  price.2  Ac- 
cording to  this  view,  obviously,  the  sale  is  complete  at  the  time 
and  place  of  delivery,  though  the  seller  has  a  lien  upon  the 
o-oods  for  the  price  and  an  action  against  the  carrier  if  he  de- 
livers them  without  obtaining  the  price.3 

§  794,  .  In  other  cases  it  is  urged  that  the  shipment 

C.  O.  D.  very  clearly  makes  the  carrier  the  agent  of  the  seller, 
not  only  to  collect  the  price,  but  to  carry  and  deliver  the  goods. 

defendants,  and  indorsed  and  de- 
livered by  Lyons  to  the  bank,  with 
the  bill  of  lading  for  the  four  cars. 
The  draft  and  bill  of  lading  were 
presented  to  the  defendants,  but  the 
draft  was  not  accepted  or  paid. 
Three  hours  afterwards  the  defend- 
ants sold  the  cattle,  but  kept  the  pro- 
ceeds because  they  claimed  that 
Lyons  was  indebted  to  them  on  an 
old  account.  The  court  held  that 
the  bank  was  entitled  to  recover  the 
proceeds  from  the  defendants. 

1  See  ante,  §  740,  notes. 

2  See  State  v.  Peters  (1897),  91  Me. 
31,  39  Atl.  R.  342;  State  v.  Intoxicat- 
ing Liquors  (1882),  73  Me.  278;  Com. 
v.  Fleming  (1889),  130  Pa.  St.  138,  18 
AtL  R  622,  17  Am.  St.  R  763,  5  L.  R. 
A.  470;  Norfolk  R  Co.  v.  Barnes  (1889), 
104  N.  C.  25;  Pilgreen  v.  State  (1882). 
71  Ala.  368;  State  v.  Carl  (1884),  43 
Ark.  353,  51  Am.  R  565,  more  fully 
stated  ante,  §  740,  note. 

8  See  Com.  v.  Fleming,  supra. 


was  held  that,  by  the  transfer  of  the 
draft  and  bill  of  lading  by  the  orig- 
inal purchasers  of  the  corn  to  the 
plaintiffs,  the  title  and  property  in 
the  corn  passed  to  them. 

In  Means  v.  Bank  (1892),  146  U.  S. 
620  (supra),  one  Lyons,  desiring  to 
purchase  cattle  from  one  Patterson, 
the  plaintiff  bank  paid  the  purchase- 
money  for  Lyons  to  Patterson,  and 
Patterson  delivered  the  cattle  to  the 
bank,  and  they  were  shipped  by  rail 
to  the  defendants,  in  six  cars,  to  sell, 
accompanied  by  Patterson,  Lyons 
and  one  Guthrie.  A  bill  of  lading 
for  four  of  the  cars  was  issued  in  the 
name  of  Lyons.  A  bill  of  lading  was 
to  be  issued  for  the  other  two  cars 
in  the  name  of  Guthrie,  as  a  pass 
could  be  issued  to  only  two  persons 
on  one  bill  of  lading.  Guthrie  had 
no  interest  in  the  cattle.  The  cattle 
in  the  six  cars  were  delivered  to  the 
defendants.  A  draft  was  drawn  by 
Lyons  against  the  shipment  on  the 

670 


CH.  VI.]  RESERVATION    OF   THE    JUS    DISPONENDI.       [§§  795,  796. 

"  In  such  cases  the  possession  of  the  express  company  is  the 
possession  of  the  seller,  and  generally  the  right  of  property 
remains  in  the  seller  until  the  payment  of  the  price."1  Accord- 
ing to  this  view,  clearly,  the  sale  takes  place  at  the  time  and 
place  of  delivery  to  the  buyer,  and  the  seller  retains  the  title 
and  the  right  of  disposal  until  that  time.2 

§  795.  How  when  goods  were  to  be  delivered  F.  0.  B.— 

Some  attention  has  been  given  in  a  previous  chapter3  to  the 
effect  of  contracts  to  deliver  the  goods  "  f.  o.  b."  (free  on  board) 
at  a  designated  place.  As  has  there  been  seen,  such  an  agree- 
ment means  ordinarily,  where  the  place  specified  is  the  place 
of  shipment,  that  the  seller  will  put  the  goods  on  board  the 
ship  or  car  for  transportation  without  charge  to  the  buyer  for 
cartage  or  loading;  and,  where  the  place  specified  is  the  place 
of  delivery,  that  the  seller  will  also  pay  the  freight  to  that 
point. 

§  796. .  This  language,  however,  especially  in  the  Eng- 
lish cases,  has  often  been  thought  to  affect  the  question  of  the 
reservation  of  the  jtis  disponendi.  Thus,  where  the  agreement 
was  to  deliver  the  goods  f.  o.  b.  at  the  point  of  shipment,  and 
the  seller  took  a  bill  of  lading  to  his  own  order,  but  imme- 
diately indorsed  it  and  sent  it  to  the  buyer,  it  was  held  that 
the  agreement  to  deliver  free  on  board  threw  light  upon  the 
intention  with  which  the  bill  of  lading  was  so  taken.4  "  The 
real  question,"  said  the  court,  "has  been  on  the  intention  with 
which  the  bill  of  lading  was  taken  in  this  form;  whether  the 
consignor  shipped  the  goods  in  performance  of  his  contract  to 
place  them  '  free  on  board,'  or  for  the  purpose  of  retaining  a 

iSee  State  v.  O'Neil  (1885),  58  Vt.  (1893),  115  Mo.  428,  22  S.  W.  R.  363,  37 

140,  56  Am.  R.  557  (see  also  O'Neil  v.  Am.  St.  R.  406,    more  fully  stated 

Vermont,  144  U.  S.  323,  where  this  ante,  §  740,  note, 

case  was  considered  at  much  length,  2  See  also  Wagner  v.  Hallack  (1877), 

but  the  writ  of  error  was  dismissed  3  Colo.  176. 

for  want  of    jurisdiction);    United  3See  ante,  §§  733  and  741,  notes. 

States  v.  Shriver  (1885),  23  Fed.  R.  134  *  Browne  v.  Hare  (1858),  4  Hurl.  & 

(s.  c.  sub  nom.  People  v.  Shriver,  31  Nor.  822,  per  Erie,  J.    See  also  Stock 

Alb.  L,  Jour.  163);  State  v.  Wingfield  v.  Inglis  (1884),  12  Q.  B.  Div.  564 

671 


§  797.]  LAW    OF    SALE.  [BOOK    II. 

control  over  them  and  continuing  to  be  owner,  contrary  to  the 
contract."  "The  contract  was  for  the  purchase  of  unascer- 
tained goods,  and  the  question  has  been,  when  the  property 
passed.  For  the  answer  the  contract  must  be  resorted  to,  and 
under  that  we  think  the  property  passed  when  the  goods  were 
placed  '  free  on  board '  in  performance  of  the  contract." l 

§  797,  ,  But  in  a  later  case  where  the  bill  of  lading,  in- 
stead of  being  sent  to  the  buyer,  was  attached  to  a  draft  for 
the  price  and  sent  forward  for  collection,  it  was  held  by  the 
court  of  appeal  that  the  jus  disponendi  had  been  effectually 
retained  notwithstanding  the  agreement  to  deliver  free  on 
board,  which  the  court  below  had  deemed  strong  evidence  of 
a  contrary  intention.2 

Where,  however,  the  language  was  "Prices  f.  o.  b.  Omaha," 
the  majority  of  the  court  in  Nebraska  held  that  while  this 
might  ordinarily  "  afford  a  presumption  that  the  delivery  was 
to  be  made  at  Omaha  and  that  title  should  there  pass,"  there 
was  other  evidence  in  the  case  sufficient  to  overthrow  it  and 
justify  the  conclusion  that  the  title  passed  on  shipment.3 


3 


i "  As  in  the  case  of  Wait  v.  Baker,        2  Ogg  v.  Shuter  (1875),  L.  R.  10  C.  P. 
2  Exch.  1,  and  (as  is  explained  in    159,  1  C.  P.  Div.  47. 
Turner    v.    Trustees    of    Liverpool        3  Neimeyer  Lumber  Co.  v.  Burling- 
Docks,  6  Exch.  543)  Van  Casteel  v.    ton,  etc.  R.  Co.  (1898),  54  Neb.  321,  74 
Booker,  2  Exch.  691."  N.  W.  R.  670,  40  L  R.  A.  534. 

672 


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